Before Rhodes, P. J., and Hirt, Reno, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 50]
In this action to recover damages for personal injuries to the minor-plaintiff, the jury found for him in the sum of $2,500 and for his parents in their right in the sum of $2,000. Defendant thereupon moved for judgments n. o. v., its request for directed verdicts having been refused at the trial of the case. The lower court after argument refused defendant's application, but at the same time ordered a new trial of its own motion. In this appeal from that order the defendant asks us not only to set aside the award of a new trial but to enter judgments in its favor.
The injury occurred on a triangular piece of land, of the defendant in Philadelphia, between its elevated tracks which run into Broad Street and its lower level main line tracks immediately west of the tunnel entrance to the Broad Street Suburban Station. The frontage of the area along Twentieth Street is closed by a board fence over seven feet high. From Twentieth Street the ground slopes in a sharp decline to the west; the surface is rough and ungraded. There is a gate in the board fence, the only means of entrance to the area, which when closed has been secured only by a latch which can be released by anyone. The gate was never locked. In the light of the verdicts we must take it as established that for upwards of two years children occasionally gained access to the area through the gate and used it as a playground. Inside the fence and about thirty feet west of the gate there is a 'signal relay house', a concrete structure, the roof of which at its east end is more than 8 feet above the sloping ground. The concrete roof of the structure is flat and has an area of about 11 by 15 feet. The entire east end of the roof is closed off by a concrete wall 8 feet high above the roof level. There is a substantial iron fence almost 5 1/2 feet high and 14 1/2 feet long, anchored into the concrete and closing the north side of the roof to within
[ 169 Pa. Super. Page 5111]
inches of its outer edge. Attached to this fence at a right angle at its west end there is a fan shaped iron fence of similar construction extending southwardly about 11 inches from the west edge. This fence closes off about one-half of the west end of the roof. Attached to the north fence, facing the enclosure at the time of the injury, there was a sign which in bold type bore the words: 'Danger Live Wire Keep Off'. To the north of the roof of the relay house there were six wires running eastwardly into the Suburban Tunnel. One of them was a high tension wire of 11,000 volts.
On Sunday afternoon February 13, 1949, the minor-plaintiff, then 8 years of age, with three other boys, ranging in age from 7 to 10 years, found the gate in the fence ajar and went into the enclosure. In the course of their play this plaintiff and two of his companions went along a rough ledge to the base of the concrete wall which closed off the east end of the relay house roof. By stepping onto a concrete block projecting from the base of the wall they were able to 'swing around' the end of the wall and onto the roof of the structure. The minor-plaintiff, in the midst of a snow ball fight, climbed outside the fan shaped fence, above referred to, thence on to the narrow ledge on the track side of the north iron fence. From that position he fell 20 feet to the ground below. As a result of contact with the high tension wire he suffered burns to his hands, wrists and right forearm, and from the fall, a broken leg. After his fall the boy's legs extended onto the southernmost of defendant's tracks. An approaching locomotive however was stopped in time to prevent further injury to him.
The Railroad Company was bound to know that young children might unlatch the door in the fence on Twentieth Street and trespass on the area, and the defendant also was charged with constructive notice that children actually had used the area, on occasion
[ 169 Pa. Super. Page 52]
as a playground. In the lower court the defendant was found chargeable with negligence under § 339 of the Restatement, Torts, as applied in Bartleson v. Glen Alden Coal Co., 361 Pa. 519, 64 A.2d 846, 850. In that case a trespassing child went upon a high tension transmission tower after passing through a gate in the fence which surrounded it. The gate which had usually been kept locked, was standing wide open on that occasion. The child in climbing up the tower came in contact with high tension electric current and was seriously injured. In that case Mr. Justice Linn said: 'The absence of notice of the open gate, if it be assumed, is immaterial; the negligent act was one of omission, failing to so secure the gate that it would not be opened. It was the defendant's duty to take reasonable precautions to prevent children from having access to its tower and coming into contact with its manifestly dangerous property'. Accordingly, to meet the question of the propriety of the order in the instant case, squarely, we will take it as established by the verdict, under the circumstances, that the defendant is chargeable with negligence.
If then the minor plaintiff came in contact with the highly dangerous wire while standing on the narrow ledge outside the fence on the relay house roof he is entitled to damages under the rule of the Bartleson case; but otherwise if he fell from the ledge and in the fall came in contact with the wire. The rationale of McHugh v. Reading Co., 346 Pa. 266, 30 A.2d 122, 145 A.L.R. 319 is that the danger of falling is commonly realized by a normal child, even of tender age; and a possessor of land is not to be visited with responsibility for accidents due to the trait of children of the more venturesome type who disregard the danger in climbing and slip and fall from an elevated structure. In the McHugh case a child, just under seven years of age, was charged as a matter of law with knowledge of the
[ 169 Pa. Super. Page 53]
danger of falling, and recovery was ...