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RUSH v. PLAINS TOWNSHIP (05/29/52)

May 29, 1952

RUSH, APPELLANT,
v.
PLAINS TOWNSHIP



Appeals, Nos. 110 and 111, Jan. T., 1952, from judgment of Court of Common Pleas of Luzerne County, Oct T., 1949, No. 1073, in case of Francis Rush and Sterling Rush, a minor, by Francis Rush, his Guardian, v. Township of Plains. Judgment affirmed.

COUNSEL

Elizabeth P. Mensch, for appellants.

Maurice H. Kirshner, with him Herman E. Cardoni, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Bell

[ 371 Pa. Page 118]

OPINION BY MR. JUSTICE BELL

Was a non-suit -- viewing the evidence in the light most favorable to the plaintiffs: Davies v. D.L. & W.

[ 371 Pa. Page 119]

    up funny books, toys, junk, rags and similar objects and that occasionally boys shot rats there. The evidence also disclosed that since 1946, a fire had often been seen burning in some part of the dump, although not where the injury occurred.

We agree with the court below that the evidence was entirely insufficient to establish this dump as a playground; and that a dumping ground for ashes and refuse does not constitute an attractive nuisance: Cf. Zellman v. Philadelphia, 17 D. & C. 493 (Judge HORACE STERN); Bruce v. Kansas City, 128 Kan. 13, 276 Pac. 284; Harlan v. Peaveley, 224 Ky. 338, 6 S.W. 2d 270.

Plaintiff relies upon Allen v. Silverman, 355 Pa. 471, 50 A.2d 275, where this Court said (page 474): "This case is ruled by the principle set forth in Section 339 of the Restatement of the Law of Torts, which we adopted in Thompson v. Reading Co., 343 Pa. 585, 23 A.2d 729, and Altenbach v. Leh. Val. R.R. Co., 349 Pa. 272, 37 A.2d 429. It reads as follows: '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 an 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."

We agree with the contention of the plaintiffs that the township should under the testimony have known

[ 371 Pa. Page 121]

    that children were likely to trespass upon this dump; but we disagree with their contention that the township should have realized that the place where the accident occurred involved an unreasonable risk of death or serious bodily harm to trespassing children. If plaintiff's injury had occurred at the place where the fire was or had been burning, a different question would have been presented; but since the injury occurred in a part of the dump where there was no fire and no evidence that prior to the accident there had been any fire, and since it was clearly and indisputably a latent condition of which the defendant did not have any actual knowledge, or constructive notice, plaintiff cannot recover.

The language of Chief Justice CARDOZO in Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, is particularly applicable: "... the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty.... The risk reasonably to be perceived defines the duty to be obeyed...."

We believe the evidence produced is insufficient to establish negligence on the part of the defendant or to warrant submission of the case to the jury.

Judgment affirmed.

Disposit ...


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