Appeals, Nos. 169, 170, 171, 172, 173, 174, 175 and 176, Jan. T., 1957, from judgments of Court of Common Pleas of Berks County, March T., 1952, No. 2, in case of Samuel Cooper, administrator of the estate of Albert Cooper, deceased, v. City of Reading and The Pennsylvania Railroad Company. Judgment n.o.v. in favor of railroad affirmed; judgment n.o.v. in favor of city reversed.
Charles H. Weidner, with him John V. Boland and Stevens & Lee, for appellant.
C. Wilson Auston, city solicitor, and George B. Balmer, with them Robert S. Shapiro, assistant city solicitor and Snyder, Balmer & Kershner, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
The instant trespass actions were instituted by the appellant, Samuel Cooper, acting in a representative capacity as administrator of the estates of his two deceased sons, to recover damages arising from their accidental deaths by drowning. The appellees, the City of Reading and the Pennsylvania Railroad Company, were named as defendants in the actions. The appellant's complaint contained four counts and asserted a cause of action against the appellees in the case of each son under both the Death Act*fn1 and the Survival Act.*fn2 Neither appellee filed an answer.
In 1911 the City of Reading constructed a large outlet pipe, six feet if diameter, for the purpose of carrying off waters trapped by its storm sewer system in the southern part of the City. The City obtained an easement which permitted it to discharge the water from this outlet pipe into the Schuylkill Canal which, at that time, ran parallel to the east bank of the Schuylkill River in the City. The canal was then in general use as a navigable waterway and the waters discharged from the pipe were carried off as part of its flow. About 1931, however, the use of the canal as a waterway was discontinued; it became largely dried up and was filled in with earth in places.
The City of Reading continued to discharge its storm drainage water into the bed of the former canal through the pipe it had constructed under the grant of its easement. Over a period of years the water emerging from the pipe has flowed into the bed of the former canal and formed a pool at the pipe outlet. This pool runs in a north-south direction and is about 50 feet long and 41 feet wide. The pool is comparatively shallow around its edges but near the center the constant flow of water from the City's outlet pipe has eroded the former canal bed and caused the formation of a hole approximately 16 feet deep.
Although he canal bed is concededly owned by the Commonwealth, the water has eroded the east side of the canal bed to the extent that for 20 feet along its east side the pool encroaches upon property owned by the Pennsylvania Railroad Company which adjoins the canal bed. This encroachment is crescent-shaped and extends only seven feet onto the property of the railroad at its widest point.
Children living in a residential area some distance from the canal bed have played on the railroad lot for many years. The pool, too, has long been used by children, both for swimming in the summer and sliding in the winter. Both the railroad lot and the pool were unfenced and easily accessible to children. No attempt had ever been made to block approach to the pool in spite of the fact that a child had drowned in the pool three years before the instant accident.
On a cold Sunday afternoon, February 4, 1951, the appellant's two sons, Albert, nine, and James, six, went to the vicinity of the pool with four other boys. For a time they amused themselves by sliding on the ice which covered the pool and by throwing rocks upon its surface to see if they could break it. Appellant's children had visited the pool on several occasions previously
but apparently did not know of the existence of the deep hole in its center. The children left the pool for a time but later returned and went out on the ice from the west bank of the pool. In the course of their play one of the boys called attention to a shiny object on the ice near the center of the pool and the Cooper boys and one other child began edging out onto the ice to get it. The ice broke beneath young Albert Cooper and he fell into the pool. While attempting to ...