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November 12, 1956


Appeals, Nos. 330 and 331, Jan. T., 1955, from judgments of Court of Common Pleas No. 2 of Philadelphia County, March T., 1953, No. 821, in case of Daniel Dugan, a minor, by his parents, et al. v. The Pennsylvania Railroad Company. Judgments reversed; reargument refused December 21, 1956.


Philip Price, with him Robert M. Landis and Barnes, Dechert, Price, Myers & Rhoads, for appellant.

B. Nathaniel Richter, with him Charles A. Lord and Richter, Lord & Levy, for appellees.

Before Stern, C.j., Jones, Bell, Chidsey and Musmanno, JJ.

Author: Chidsey

[ 387 Pa. Page 27]


This is an action in trespass brought on behalf of Daniel Dugan, a minor, by his parents and by them in their own right to recover damages for serious injuries which the minor sustained from an overhead electric power line when he climbed to the top of a train of the defendant Pennsylvania Railroad Company, stopped temporarily at a signal on one of its main line tracks. The jury returned a verdict in favor of the minor plaintiff for $40,000 and for his parents in the sum of $10,000. The defendant filed a motion for a new trial which was withdrawn and a motion for judgment non obstante veredicto which was dismissed by the court below. From the final judgment entered on the verdicts for the plaintiffs, defendant has appealed.

The proper determination of this case depends on the application of § 339 of the Restatement, Tors, to the evidence presented at the trial. The area where this accident occurred may be described as follows: On 67th Street between Elmwood Avenue on the south and Woodland Avenue on the north, in the City of Philadelphia, there is a bridge which goes over the defendant's electrified four-track main line between New York and Washington, on which freight and passenger

[ 387 Pa. Page 28]

    tracks at this point run east and west. On the east side of 67th Street as one proceeds in a northerly direction towards the bridge the John Bartram High School is located. Immediately to the north of the school is a high cyclone fence owned and maintained by the Philadelphia Electric Company. This fence which runs up to the bridge, separates the school property from a strip of land, between 40 and 46 feet wide, owned by the electric company between 66th and 67th Streets on the Elmwood Street side of the railroad right-of-way, and runs up to the bridge. On the north side and below the electric company's property is the railroad right-of-way which extends 50 feet, north and south, from the center line of the four tracks. For some time prior to the accident there had been a hole in the gate of the electric company's fence and the gate, which is immediately adjacent to 67th Street, was sometimes left open. Just inside of the fence and opposite the gate is a 63 foot high tension tower owned by the Philadelphia Electric Company. On the steep banks leading down to the railroad tracks are hedges and undergrowth where, according to plaintiffs' evidence, children frequently played. Immediately east and next to the abutment of the bridge is a concrete sluice leading partway down the embankment. Bridges for pedestrians and vehicles cross the tracks overhead at 71st, 70th, 67th, 65th, 63rd and 62nd Streets, and a foot bridge crosses at 66th Street. On both sides and on the street level of the 67th Street bridge are high, solid sheet metal fences which appellees admit in their brief made it impossible for anyone to reach the railroad's electrified, catenary wires running underneath the bridge. On these metal fences are signs that say "danger, live wire, keep off". From 160 to 200 passenger and freight trains - one every nine minutes - daily pass in both directions on the railroad's

[ 387 Pa. Page 29]

    tracks at this point at speeds up to 75 miles per hour. The two northernmost tracks are used for trains proceeding toward Washington, while the two southernmost tracks are for trains soving toward the center of Philadelphia. Train movements in this area are controlled by defendant's signal tower operator at Brill Tower in the vicinity of 61st Street. Because of train movements in and out of the Grays Ferry yard area which is to the east of Brill Tower, trains on the second track going toward Philadelphia are sometimes stopped at the signal bridge near 62nd Street. Evidence adduced by plaintiffs showed that when and how long trains might be stopped in transit by the Brill Tower operator was unpredictable and depended on conditions as they arose. During the month immediately preceding the accident the train in question, known as ME-2, passed under the 67th Street bridge practically daily and was delayed six times for periods of 8, 11, 14, 17, 44 and 59 minutes.

On the day of the accident, a Saturday afternoon, the injured minor, who was 11 1/2 years old, left his home with his 8-year old brother for the purpose of going to the movies. They walked north on 67th Street until reaching the 67th Street bridge where they climbed through the hole in the electric company's gate and played around the hedges and the concrete sluice for approximately one-half an hour which, according to their testimony, they had done on a number of occasions before. A long freight train, ME-2, consisting of 61 cars and extending about three-fifths of a mile in length, was standing on the second track. Theminor plaintiff could not see either end of it from where he was standing at the foot of the 67th Street bridge. This freight train was temporarily stopped because of train movements ahead for approximately 44 minutes. Desiring

[ 387 Pa. Page 30]

    to cross the tracks so as to continue on to the movies, the minor plaintiff crossed over the first track and climbed up the side ladder of one of the boxcars located one or two car lengths east of the bridge. Arriving on top, he pointed to the overhead catenary wire, which was approximately 19 feet above the track level carrying 11,000 volts, and warned his brother not to fool around with it. At this point, it was testified, a spark jumped or arced from the wire to the plaintiff's wrist, inflicting serious and permanent injuries. There were no witnesses to the accident except the minor plaintiff and his little brother.

At the trial, in addition to the above facts, the testimony offered by the plaintiffs, which must be interpreted most favorably to them, disclosed that for several years children had frequently played on the embankment next to the 67th Street bridge, hiding in the hedges, digging holes, and sliding down the concrete sluice. There was also testimony from which the jury could find that children sometimes crossed over the top of boxcars standing at this point.*fn1 The minor plaintiff, although described by his attending physician, a witness on his behalf, as a "very brilliant child", testified that he had never heard of a live wire and that he knew nothing about the ability of electricity to arc from such a wire.*fn2

[ 387 Pa. Page 31]

To establish defendant's liability, the plaintiffs seek to bring the case within the rule set forth in § 339 of the Restatement, Torts. This section of the Restatement supersedes and supplants the doctrine of "attractive nuisance" and the "playground rule": Thompson et al. v. Reading Company, 343 Pa. 585, 23 A.2d 729; McGill et al. v. United States, 200 F.2d 873 (C.A. 1952); Prosser on Torts, § 77. It has been termed "The best statement yet made" of the principles under which a possessor of land will be held liable to trespassing children for bodily harm caused by artificial conditions maintained thereon: Prosser on Torts, supra, at p. 620. There can be no doubt that § 339 has been adopted in toto by this Court and is the law in this State; it has been cited, with approval, numerous times*fn3 by this Court. In Bartleson et al. v. Glen Alden Coal Company et al., 361 Pa. 519, 529, 64 A.2d 846, Mr. Justice LINN said for this Court: "... To the extent that past cases are in conflict with the view of section 339 of the Restatement of the Law of Torts, which we have adopted, they are no longer authority ...". The issue here is whether the evidence presented by the plaintiffs at the trial brings the case within § 339. We think it does not.

[ 387 Pa. Page 32]

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 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.". The Restatement thus lays down four requirements, all of which 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; Jennings v. Glen Alden Coal Company, 369 Pa. 532, 87 A.2d 206.

There was evidence in the present case, sufficient perhaps,*fn4 to go to the jury, to meet the conditions of clauses (a), (b) and (c) of § 339. But the evidence intended to satisfy the condition of clause (d) was not such as to make this element also a jury question.

The comment in § 339 makes this explanation of clause (d): "In determining whether a particular condition maintained by a possessor upon land which he knows to be subject to the trespasses of children involves an unreasonable risk to them, the comparison

[ 387 Pa. Page 33]

    of the recognizable risk to the children, with the utility to the possessor of maintaining the condition, is of peculiar importance. The public interest in the possessor's free use of his land for his own purposes is of great importance. A particular condition is, therefore, regarded as not involving unreasonable risk to trespassing children unless it involves a grave risk to them which would be obviated without any serious interference with the possessor's legitimate use of his land....". (Emphasis supplied). In Prosser on .torts, supra, it is said at p. 624: "The utility to the possessor of maintaining the condition must be slight as compared with the risk to children involved. Here, as elsewhere, negligence is to be determined by weighing the probability and the gravity of the possible harm against the utility of the defendant's conduct. The public interest in the free use of land is such that, in general, he will not be required to take precautions which are so burdensome or expensive as to be unreasonable in the light of the risk, or to make his premises 'child-proof.' Such things as standing freight cars and moving vehicles are undeniably attractive to children, but are socially useful and very difficult to safeguard, and so may call for very little in the way of care. ...".

This Court has consistently maintained a strict insistence on keeping the application of § 339, Restatement, Torts, within proper bounds. In all of the cases where recovery has been allowed, we have stressed the necessity of proving that the danger could be eliminated at moderate cost and effort on the part of the defendant. In every one of these cases, the hazard which caused injury to the child was confined to a small fixed location and could have been eliminated with little effort. In Thompson et al. v. Reading Company, supra, where an 8-year old boy was injured on a railroad

[ 387 Pa. Page 34]

    turntable, the accident could have been prevented by a simple locking device which was on the turntable but had been broken for a long time. We pointed out, at P. 600, that: "... The expense and attention required in so locking such instrumentalities are negligible. ...". In Altenbach et ux. v. Lehigh Valley Railroad Company, 349 Pa. 272, 37 A.2d 429, we allowed recovery where a 3-year old boy drowned in defendant's small reservoir. The defendant had allowed its fence around the reservoir to become in a state of disrepair with several boards missing, and we held the defendant liable since the dangerous condition could be eliminated by a little attention and a slight outlay of money. Id. at p. 275. In Allen, Admr., v. Silverman, 355 Pa. 471, 50 A.2d 275, where recovery was allowed when a 400-pound metal cylinder, which had been left standing unblocked, rolled off a sloping platform and killed a 5-year old child, we said at p. 475: "... It is obvious that for but a very slight cost blocks could have been securely fastened to the platform or the cylinder could have been stored in a place not dangerous to children ...". In Patterson et al. v. Palley Manufacturing Company (et al.), 360 Pa. 259, 61 A.2d 861, where a 13-year old boy was injured when the wall of a partially demolished building fell upon him, we held that the defendant could have placed a guard on the demolition site for the one additional night during which the wall was permitted to stand, or could have torn it down immediately rather than allowing it to stand until the next morning. The cost of such precautions in the course of a four-day demolition job was obviously inconsequential. In Bartleson et al. v. Glen Alden Coal Company et al., supra, on which plaintiffs principally rely, we allowed recovery where an 11-year old boy climbed upon a stationary tower and came in contact

[ 387 Pa. Page 35]

    with a high tension wire. The tower was enclosed by a fence 7 feet high, the gate of which was unlocked, and we said at p. 527: "... The installation of a locking device, at negligible cost, would have obviated the risks to children. ...".

Plaintiffs' counsel has not cited any case that goes as far as he would now have us go in requiring a possessor who is legitimately using his land for a socially desirable purpose, to take burdensome precautions so as to eliminate the risk of injury to trespassing children. He admits that the 67th Street bridge was properly constructed so that it was impossible to gain access to the electric wires running over the tracks from the street level of the bridge. It is also not contended that the uninsulated wires, necessary for the electrical operation of defendant's trains, could or should have been insulated. Plaintiffs maintain that the defendant was under a duty to fence in the right-of-way at the 67th Street bridge, or else to see that the electric company's fence was maintained in good condition. However, it is so well settled in this State as to admit of no argument, that it is not obligatory on the part of the railroad to fence its right-of-way to prevent trespassing by children: Malischewski et al. v. Pennsylvania Railroad Company et al., 356 Pa. 554, 52 A.2d 215; and cases cited therein. In addition it should be noted that on the north side of the tracks between 67th Street and 66th Street, practically the entire block gave easy access to the railroad and of course this would also have to be fenced to prevent children from playing in the area. Moreover the plaintiffs' evidence in the instant case amply shows not only that children played at the base of the 67th Street bridge, but also that they played in many other areas along this right-of-way. One of plaintiffs' witnesses, a Mr. Brower who

[ 387 Pa. Page 36]

    was a former locomotive engineer for the Pennsylvania Railroad, testified that he had often seen children playing beside the right-of-way and on the railroad cars all along his entire run which was from New York to Washington and return, and in the Philadelphia area he specifically mentioned 39th, 49th, 50th, 67th, 71st and 72nd Streets in Philadelphia.*fn5 Within a 30-mile radius of Philadelphia, the defendant has 275 miles of electrified main tracks. Although the plaintiffs are interested only in the railroad right-of-way at 67th Street, if the present argument should prevail, it would apply to any spot along the tracks at which children frequently played. What the plaintiffs are saying is that in any area along the railroad property which children frequent, the defendant must make it impossible to reach its tracks either by the erection of child-proof fences of its own or by making certain that the fences of others are sufficient and maintained in good condition. Clause (d) of § 339 imposes liability where the owner of the premises, the other conditions being present, could eliminate the dangerous condition at no great expense and with little interference with the use of the land. It is, of course, obvious that if there were imposed upon the defendant the requirement of fencing the place where this accident occurred,

[ 387 Pa. Page 37]

    it would likewise be subject to the duty of fencing the innumerable places along its many miles of tracks frequented by trespassing children, to prevent them from clambering over cars of a train halted in transit. The same is true of plaintiffs' claim that the defendant should patrol up and down the length of a train, temporarily halted at an unpredictable point, to protect against children who might happen to climb upon one of its cars. Railroad passenger and freight trains are frequently quite long and they would have to be manned by a score of employes simply to patrol the train while it was thus temporarily standing. Patently the ordinary train crew, aside from their duties in connection with the train's operation, could not effectively perform such function. It would be hopelessly impracticable to employ sufficient guards to police every car on a train which the safety of railroad operations required to be stopped in transit.

The protective measures suggested by the plaintiffs, if adopted, would inordinately burden the operation of the railroad, and consequently have been rejected by this Court in the past. In Tiers v. Pennsylvania Railroad Co., 292 Pa. 522, 531, 141 A. 487, we said: "... If it were bound to keep constant guard against the possible presence of others, wherever it was customary for trespassers or licensees to enter upon its right of way, a proper operation of trains for the convenience of the public would be rendered most difficult, if not impracticable. ...". In Shaw v. Pennsylvania Railroad Company, 374 Pa. 8, 96 A.2d 923, where a 12-year old boy was injured while climbing over a flat car that was part of a standing train temporarily stopped across a permissive way, we held that there was no duty on the part of the railroad company to place lookouts at the permissive crossing to prevent children from climbing upon

[ 387 Pa. Page 38]

    the cars. In Scibelli v. Pennsylvania Railroad Company, 379 Pa. 282, 108 A.2d 348, a 7-year old boy was injured while attempting to board a freight train which stopped momentarily in an area of land frequented by children. In rejecting the plaintiffs' contention that the railroad should have posted guards to prevent children from boarding the train, we said at p. 289: "Needless to say, the operation of its trains by a railroad company over its right-of-way for the transportation of freight is an essential function. It is vital to commerce, and the public as well as the railroad company has an interest therein. The maintenance of service should not be made unduly burdensome. We have been referred to no case where a court has gone so far as to require a railroad company to patrol its tracks or police its trains with a sufficient number of guards to prevent children from attempting to board them. On the contrary, other jurisdictions have held that no such duty exists: See Smith v. Illinois Cent. R. Co., 214 Miss. 293, 313, 58 So. 2d 812, 819 (1952); Union Ry. Co. v. Williams, 6 Cir., 187 F.2d 489, 493 (1951); Nolley v. Chicago, M., St. P. & P.R. Co., 8 Cir., 183 F.2d 566, 566, 569, 570 (1950); Angiline v. Norfolk & W. Ry. Co. et al., 99 W. Va. 85, 128 S.E. 275, 277 (1925); Wilson v. Atchison, T. & S.F. Ry. Co., 66 Kan. 183, 186, 71 P. 282 (1903); The Oregon Ry. and Nov. Co. v. Egley, 2 Wash. 409, 26 P. 973 (1891). It is difficult to conceive how a ...

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