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January 2, 1951


Appeals, Nos. 200 and 229, Jan. T., 1950, from judgments of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1948, No. 608, in case of Patrick Gallagher et al. v. Albert Frederick et ux. Judgments affirmed.


Laurence H. Eldredge, with him I. Sidney Sherwin and Morris J. Winokur, for appellants.

Daniel J. McCauley, Jr., for appellees.

Before Drew, C.j., Stearne, Jones, Ladner and Chidsey, JJ.

Author: Jones

[ 366 Pa. Page 451]


This action in trespass was brought by the father of the minor plaintiff in the latter's behalf, as his natural guardian, and in the father's own right to recover damages for injuries sustained by the minor when he was burned by flames from a bonfire on a lot of ground owned by the defendants, husband and wife. At the close of the plaintiffs' case, the learned

[ 366 Pa. Page 452]

    trial judge, on motion of defendants' counsel, entered a compulsory non-suit which the court en banc later refused to take off. From the judgments entered for the defendants, the father brought these two appeals in his respective capacities. The basis assigned by the court below for its action was the failure of the plaintiffs to prove negligence on the part of the defendants as the proximate cause of the injury.

The following are the material facts when the evidence and the reasonable inferences are taken in the light most favorable to the plaintiffs. The defendants bought a vacant lot in the center of a city block in the Kensington section of Philadelphia. It was 184 feet by 51 feet, 9 inches, in size, and was situated just around the corner from the defendants' dwelling and across the street from the plaintiffs' home. The surrounding area was densely built up with dwellings, factories and mills. The defendants obtained possession of the lot on August 23, 1946, at which time it was being kept in order by some of the parents of the neighborhood in a clean and safe condition so as to afford an open playground for the children of the community. After acquiring the property, the husband defendant put upon it a large amount of charred lumber which he had salvaged from a building in the neighborhood that had been burned, large chunks of broken-up cement flooring from a nearby social club that he was remodeling and several piles of cinders and other refuse. He had in mind improving the lot by erecting thereon a number of garages for the storage of automobiles, the whole project to be enclosed by a cinder block wall. Several of the witnesses referred to the materials on the lot as debris which is not a wholly inapt description judging from the pictures of the locus in quo offered in evidence. However, that the owners intended to use the materials for building purposes is unquestioned.

[ 366 Pa. Page 453]

After the defendants' acquisition of the property, the children of the neighborhood, ranging in ages from approximately three up to fifteen years, continued to come there as a matter of course; they played among the debris, dug holes and frequently built fires using bits of the charred lumber for the purpose.From the testimony, the jury could have found that fires were made daily; the defendants' knowledge of that condition was constructive as the owners and users of the lot resident around the corner. Complaints had been made to the defendant husband that children were getting hurt on the lot but, so far as the record discloses, such complaints were confined to the physical condition of the materials which the defendant husband had placed upon the lot.

About 12:30 o'clock Sunday noon, October 6, 1946, the minor plaintiff, then two years and eleven months old, went out of his home, crossed over the street to the lot and there joined several other children who were playing on and around a pile of broken concrete at the base of which at one end they had built a small bonfire. The other children, among them a brother of the minor plaintiff, were a little older than he, at least two of them being around six years of age. A few minutes later the other children moved off a little distance from the fire, leaving the minor plaintiff on the pile of broken concrete.One of the children, who was permitted to testify at trial, heard the little boy scream and, looking round, saw him standing on the pile with his clothes aflame. A neighbor, attracted by the screams, put out the flames and rushed the boy to a nearby hospital where his burns required him to be kept for about a ...

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