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March 10, 1958

Edward MENNETI, Administrator of the Estate of Marc Albert Warner, Deceased, Plaintiff,
EVANS CONSTRUCTION COMPANY and William M. Cadman and William Morrow, trading as Morrow's Contracting Company, Defendants

The opinion of the court was delivered by: KRAFT

This diversity action to recover damages for the death of a minor by drowning is governed by the substantive law of Pennsylvania. The jury rendered a verdict against both defendants, awarding damages of $ 45,000 in the survival action and $ 385 in the wrongful death action. Decision was reserved on defendants' motions for directed verdict at the close of all the evidence. Defendants filed post-trial motions, under F.R.C.P. 50(b), 28 U.S.C.A., for judgment n.o.v. or, alternatively, for a new trial.

Viewing the evidence in the light most favorable to the plaintiff, the essential facts may be thus summarized:

 Marc Albert Warner, aged 7, a normal boy of slightly more than average intelligence, was drowned about 5:00 p.m. on May 27, 1953 when he slipped or fell into a rain-filled ditch on the land of Evans Construction Company (Evans), one of the defendants.

 Preparatory to development of this land, which it had owned for less than a year, Evans had had a number of large trees cut down. Thereafter, shortly before May 21, 1953, Evans contracted with the other defendant, Morrow's Contracting Company (Morrow), to have Morrow, an independent contractor, bury the tree stumps near the rear of Evans' tract. Morrow was to use its bulldozer to excavate a ditch into which the stumps were to be pushed and covered with earth.

 Evans' land fronted on Hutchinson Terrace, a rough, unimproved street in Holmes, Delaware County. Hutchinson Terrace was about 2 feet higher than the intended excavation site. The intervening ground of Evans was generally low and uneven, sloping slightly downward toward the proposed ditch site, 132 feet to the east. Lawton Terrace, the next street, was east of and parallel to Hutchinson Terrace and was 225 feet from and about 6 feet higher than the site of the proposed ditch. The ground between Lawton Terrace and the ditch site, most of which was not owned by Evans, sloped moderately downward in a westerly direction and was, in part, overgrown with trees and brush. The surrounding area, though not densely populated, was residential in character. For several years neighborhood children had, from time to time, played upon and traversed Evans' and appurtenant vacant land. Children, including Marc, played upon Evans' land in the afternoon of the first day the work of excavation was in progress.

 Morrow's bulldozer operator, Forrester, began work about 8:30 a.m. on May 21, 1953. On that day he excavated a ditch about 80 feet long, 12 feet wide and 6 feet deep, with an earthen access ramp at one end. He pushed many stumps into the ditch and covered them. However, he was unable to complete the job that day and, when he stopped work about 4:30 p.m., he left, unfilled, a portion of the ditch about 15 to 20 feet long with a maximum depth of 6 feet. When Forrester ceased work in the late afternoon of May 21, intending to resume the work on the following morning, this unfilled section of the ditch was dry.

 The next morning, May 22, it rained. Forrester did not resume the work, as he had intended, because of the rain and his conviction that it would be too muddy for operation of the bulldozer. The amount of that day's rainfall in the vicinity of Holmes is unknown. Measurements, in inches, made at five Philadelphia weather stations, variously located from about 4 to 12 miles from Holmes, varied from .70 to .89.

 Saturday, May 23 and Sunday, May 24, were weekend holidays on which Forrester did not work. It rained early Saturday morning, but clear, sunny weather prevailed on the rest of that day and on Sunday. The quantity of rainfall in Holmes on Saturday morning is not known. Measurements made at the five Philadelphia weather stations showed the following differences in the Saturday morning rainfall: Drexel Institute .70; International Airport .13; Point Breeze .13; Shawmont (Fairmount Park) 1.63; Custom House .73. International Airport, about 4 miles from Holmes, was the closest of these stations to the ditch site.

 Monday, May 25, dawned clear. Forrester returned to resume the work, but found that someone had tampered with the bulldozer which he had parked beside Hutchinson Terrace. He was unable to start the motor and a mechanic was sent from Morrow's shop to assist him. Meanwhile, Forrester concluded that it was too muddy to use the bulldozer in any event and, at the request of Evans, the bulldozer was removed by Morrow's trailer to another Evans' job elsewhere in the county. Later, during that day it rained, and that fall was measured in Philadelphia as follows: Drexel Institute .17; International Airport .32; Shawmont, a trace. The amount of rainfall in Holmes is unknown.

 Tuesday, May 26, was a rainy day. The amount of rainfall in Holmes was not ascertainable. All five Philadelphia stations recorded more than 1 inch. Point Breeze station recorded 1.63 and the Custom House station 1.24.

 Wednesday, May 27, was, for the most part, a sunny day, though a slight shower of negligible quantity was noted at the Drexel Institute weather station. Late that afternoon Marc and a young playmate entered upon Evans' land to look for tadpoles. Coming upon the ditch nearly filled with muddy water, they began to float sticks in it. While Marc's playmate was momentarily absent, Marc slipped or fell into the water and was seen by his returning playmate as he disappeared beneath the surface.

 No one saw or examined the ditch after 4:30 p.m. on May 21, nor was anyone aware of the accumulation of water therein, until the arrival of Marc and his playmate in the late afternoon of May 27. The water in the ditch accumulated from the run-off of the heavy rainfall of May 26 upon land so saturated from the rains, which fell before and on May 25, as to prevent further absorption of water. The maximum depth of the water when Marc fell in was 5 feet 2 inches.

 Motion for Judgment N.O.V.

 Plaintiff relies on Section 339 of the Restatement of Torts for recovery, contending that both Evans and Morrow were possessors of the land and that all the conditions prescribed by § 339 existed; or that, if Morrow was not a possessor, its liability was that of the creator of the condition and so, under § 384, identical with the liability of the possessor. Defendants insist that plaintiff failed to prove the existence of the conditions necessary to impose liability under § 339. ...

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