September 11, 1958
Appeals, Nos. 161 and 162, April T., 1957, from judgments of Court of Common Pleas of Allegheny County, July T., 1952, No. 3170, in case of Patricia Sullivan, a minor, et al. v. County of Allegheny et al. Judgments reversed.
Roslyn M. Litman, with her Litman & Litman, for appellants.
John R. Bredin, with him Pringle, Bredin & Martin, for Allegheny County, appellee.
Anton W. Bigman, for Braddock School District, appellee.
Francis A. Muracca, for Borough of Braddock, appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 372]
OPINION BY HIRT, J.
The minor plaintiff lived with her parents in a three room rear apartment on the third floor of a building on Braddock Avenue in the Borough of Braddock. Eight families in all lived in as many apartments on the third and fourth floors of the building. The first two floors were used for business purposes. The defendants took title to the premises by sheriff's deed on a sale for delinquent taxes on March 10, 1951, in a proceeding brought by the County of Allegheny. Attached to the rear of the building there was an iron fire escape with a landing on each of the floors. The photographs in evidence indicate the failure of the owners to maintain the structure in proper repair for a period long before the defendants bid in the property. In the section running from the ground level to the first floor, there was one step entirely missing, and the angle iron which had supported another step had completely rusted away from the metal stringer, thus removing support at one end of the step. Two treads were completely missing from the section of the stairs leading to the third floor. The photographs disclose an old building in a state of disrepair in other respects as well.
Adjoining the apartment house property there was a vacant lot which served as a playground for the children of the neighborhood. About 6 p.m. on the evening of May 27, 1952 the minor-plaintiff, age 4 1/2 years, was playing with two somewhat older children. The fire escape was attractive to the playing children, and on this occasion some of the older ones were climbing the structure to the fourth floor intending thence to go through the building and down the inside stairway to the exit onto Braddock Avenue. The child-plaintiff followed them and between the second and third landings fell through the opening left by one of the missing steps, a distance of 22 feet to the cement paving below.
[ 187 Pa. Super. Page 373]
When her mother first observed the child on the fire escape and ran to her aid it was too late to prevent the fall. The mother reached her as she was lying at the foot of the fire escape apparently unconscious. The child was seriously injured. Plaintiffs' medical testimony was that as a result of the fall the child sustained a severe laceration of the forehead, a fractured arm, a cerebral concussion causing traumatic epilepsy and a partial paralysis of the sixth cranial nerve which will continue to result at times, in double vision.
In this action brought on behalf of Patricia for pain and suffering and for future damages, the jury found for the child in the very moderate (in the light of her injuries) sum of $2,500. The parents sued for the medical expense in a considerable amount. The jury denied them recovery in any sum on a finding that they were chargeable with, and barred by, their contributory negligence. The majority of us are of the opinion that the court erred in the refusal of a new trial under the circumstances.
Except for evidence on the medical issues, the defendants offered no testimony. The fact therefore that the jury charged the plaintiff parents with contributory negligence, without any testimony from the defendants, invites a close scrutiny of the charge of the trial court on the subject. Referring to the cause of action by the parents in their own right the trial judge charged: "Now, as to the parent plaintiffs, it is submitted to you, arguendo, that these parents, by their own testimony, knew that this fire escape was being used by the children; they knew it was in disrepair, and that they didn't take proper precautions. They are bound by the knowledge, that all of us are, that children do act on emotion, on impulse, that they didn't throw out sufficient safeguards so that Patricia would not use that fire escape, and that, therefore, they are chargeable
[ 187 Pa. Super. Page 374]
with contributory negligence by allowing the child to go out into the vacant lot and to be alongside and near that fire escape without having someone older to either watch her or to use some means, when they knew that it was in disrepair, that she wouldn't attempt to go up that fire escape.
"Well now, that question of contributory negligence is going to be a matter for you, the jury. Considering all of the circumstances that Patricia would have a right to recover under conditions that I have explained to you, but that necessarily doesn't mean that the parents would have a right to recover. If you would find that they did not assume the duties, the obligations, the surveillance over Patricia, with the knowledge that they had, you would be warranted in denying them a verdict. But, if you find that, considering their status in life, the multiple obligations of a housewife, the time of day, the facts, if you believe all this testimony, that the husband worked at night, were having their evening meal before he probably rested a while, then would go to his work, and all the surrounding circumstances, and you believe her testimony, that she frequently - maybe she said even on this particular evening, warned Patricia not to go near the fire escape, then it would be a matter for you to determine if, considering all of those circumstances the parents did exercise that degree of surveillance over their child, at that age, that they couldn't be charged with any wrong doing in not exercising more affirmative surveillance and protection to her. That is going to be a matter for you and your good common sense, whether or not the parents are charged with contributory negligence in permitting Patricia to go to this vacant lot at that time of evening, knowing the disrepair of this fire escape, because they themselves are bound by their own testimony as to the condition of the fire escape. The father, Mr. Sullivan, as I go
[ 187 Pa. Super. Page 375]
through my notes, was not interrogated at all - I don't know, maybe it may have been that the lawyers just wanted to save time in not having too much of an accumulative record, maybe some other reason, that again is for you too - he was not asked anything about this fire escape when he was called to the stand. He was testifying mostly about Patricia's condition of health. But whether or not the parents are guilty of contributory negligence is for you to decide and you would decide it based on the testimony submitted by themselves because you will bear in mind here that other than medical testimony, the defendants offered no contra testimony."
Under our Pennsylvania decisions (cf. Dattola et ux. v. Burt Bros., Inc., 288 Pa. 134, 135 A. 736; Goldberg et al. v. P.R.T. Co., 299 Pa. 79, 149 A. 104) the present parents as plaintiffs presented, prima facie, a case free from contributory negligence. There was no proof that the child had ever been on the fir
Judgments reversed with a venire.
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