Appeals, Nos. 227 and 228, Jan. T., 1951, from order of Court of Common Pleas of Luzerne County, March T., 1949, No. 628, in case of James Jennings, Admr., estate of Edward Jennings, deceased, etc. v. Glen Alden Coal Company. Order affirmed.
James Lenahan Brown, with him Daniel J. Flood, Joseph V. Kasper and Thomas F. Farrell, Jr., for appellants.
J. H. Oliver, with him Arthur H. James, Gilbert S. McClintock and Franklin B. Gelder, for appellee.
Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
The proper determination of this case rests on the application of Section 339 of the Restatement, Torts to the evidence presented at the trial. The learned trial judge held that plaintiff had failed to bring himself within the scope of that rule and accordingly entered a non-suit. From an order denying a motion to remove the non-suit, plaintiff has appealed.
On July 28, 1948, Edward Jennings, a minor then thirteen and a half years old, accompanied by several other boys, left his home in Hanover Township, Luzerne County, seeking work in Nanticoke Borough. Finding no jobs available they started to return home. En route they were joined by Edward Jennings' uncle, William Eckrote. Instead of following the highway they proceeded across land owned by defendant, Glen Alden Coal Company. On that land was a hole approximately
fifty feet in diameter which had resulted from defendant's strip mining operations and which had been allowed to fill with water to a depth of approximately twenty-five feet. Eckrote led the boys to this pool and suggested to them that they go swimming. Jennings, along with several others, went in the water and swam around for some time. He came out of the water then dove back in and started to swim across the pool again. When he reached a point near the far side of the pool he went down and was drowned. Eckrote, in an effort to save the boy, dove into the water and was also drowned.
James Jennings, the father of Edward and administrator of his estate, brought these actions to recover damages for his death. At the trial, in addition to the above facts, the testimony disclosed that defendant's land was wild and uncultivated and from the point where the pool was located to the nearest highway or habitation was at least one-half mile, although paths which had been used by defendant in its mining operations were still visible on the ground. It was also shown that on one or two previous ocasins boys had been swimming in this pool. On the basis of this evidence plaintiff contends that the question of negligence is for the jury under the doctrine laid down in Section 339 of the Restatement, Torts which was expressly adopted by this Court in Bartleson v. Glen Alden Coal Co., 361 Pa. 519, 64 A.2d 846. The learned court below properly rejected this contention.
Section 339 provides: "A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and
which he realizes or should realize as involving as unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein." All these requirements must be met before a possessor of land is liable for injuries to trespassing children: Verrichia v. Society Di M. S. Del Lazio, 366 Pa. 629, 79 A.2d 237. Plaintiff's evidence falls far short of meeting that standard.
There is no evidence that defendant knew or should have known of the likelihood of children trespassing near the pool. It is true that there was a path which led from the highway to the pool but there is nothing to show that that path was used for any purpose after defendant ceased its mining operations. The path may have made trespassing possible but no duty arises out of mere possibilities. Likewise, the facts that a few people occasionally hunted or picked berries on the tract or even that children had on one or two occasions gone swimming in the pool does not prove defendant knew or had reason to know of the trespasses. This is merely a pool of water which had been used once or twice by boys for swimming. Certainly an owner of land cannot be charged with constructive notice of trespassing children on the basis of two widely separated visits.
The pool was in an isolated area a half mile from the nearest settlement and an equal distance from the nearest road. There is no evidence that children regularly played in this area or passed through it. This case is in no way analogous to Bartleson v. Glen Alden Coal Co., supra, or Thompson v. Reading Co., 343 Pa. 585, 23 A.2d 729. In the Bartleson case children had
played within a hundred feet of the electric tower for ten years and in the Thompson case they had actually played on the turntable for the same length of time. Obviously in those cases the long continued and regular usage by the children constituted constructive notice to defendants. Such evidence is wholly lacking in this case.
An even more compelling reason for denying liability is found in clause (c) of Section 339 which states that "the children because of their youth do not discover the condition or realize the risk involved..." It certainty cannot be said that a normal boy thirteen and one-half years of age who has been in and around water often enough to have learned how to swim does not realize the risk involved in swimming in deep water. We have repeatedly held that the perils contained in a body of water are obvious to children at an early age: Simon v. Hudson Coal Co., 350 Pa. 82, 38 A.2d 259; Murdock v. Pa. Railroad Co., 150 Pa. Superior Ct. 156, 27 A.2d 405.
In this connection plaintiff places great stress on Mussolino v. Coxe Bros. & Co., Inc., 357 Pa. 10, 53 A.2d 93, and Altenbach v. Leh. Val. R.R. Co., 349 Pa. 272, 37 A.2d 429. In the Mussolino case a three year old child, while following a path regularly used by young children fell in an unguarded pond. In the Altenbach case a fence around a reservoir was allowed to fall into disrepair in an area where children played daily and a four year old boy crawled through the fence and was drowned. Those cases go no farther than to hold that where an artificial body of water is located in a place where extremely young children habitually play and is not supplied with an adequate safeguard to prevent children from falling in the water the owner is liable under Section 339. Here, as we stated above, children did not regularly play in the area; the boy was of at least average intelligence for his thirteen and a
half years; furthermore he did not fall into the water but deliberately dove in and went swimming. Under these circumstances Section 339 cannot apply for as is stated a comment of that section "The purpose of the duty is to protect children from dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger." As this Court held in Prokop v. Becker, 345 Pa. 607, 29 A.2d 23, The duty of a possessor of land to trespassing children does not extent to those conditions the existence of which is obvious even to children and the risk of which is fully realized by them. In the instant case, the boy was of sufficient age and understanding to fully appreciate the dangers inherent in the pool and no recovery can be allowed.
In so holding we are not, as plaintiff argues, finding as a matter of law that Jennings was guilty of contributory negligence. That question has no place in this case. The sole issue is whether defendant was under a duty to protect the boy from this type of accident. Under Section 339 that duty extends only to those children too young to appreciate the dangers involved. Such was not the case here and hence no duty was breached by defendant. Accordingly a non-suit was properly entered.
ING OPINION BY MR. JUSTICE MUSMANNO
The learned trial Judge below erred in stating to the jury when he entered the non-suit against the parent plaintiffs that -- "... If we were to permit a recovery in this case, we would have to impose upon the owners of land adjoining rivers, lakes, streams, ponds and pools of all kinds the burden of either ...