Appeal, No. 183, March T., 1959, from order of Court of Common Pleas of Somerset County, No. 1101 Continuance Docket 1958, in case of Anna Yania, administratrix of the estate of Joseph Yania, deceased et al. v. John E. Bigan. Order affirmed. Trespass for wrongful death and survival action. Defendant's preliminary objections sustained and complaint dismissed, order by LANSBERRY, P.J. Plaintiff appealed.
Archibald M. Matthews, for appellant.
Taylor B. Coffroth, for appellee.
Before Jones, C.j., Bell, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
A bizarre and most unusual circumstance provides the background of this appeal.
On September 25, 1957 John E. Bigan was engaged in a coal strip-mining operation in Shade Township, Somerset County. On the property being stripped were large cuts or trenches created by Bigan when he removed the earthen overburden for the purpose of removing the coal underneath. One cut contained water 8 to 10 feet in depth with side walls or embankments 16 to 18 feet in height; at this cut Bigan had installed a pump to remove the water.
At approximately 4 p.m. on that date, Joseph F. Yania, the operator of another coal strip-mining operation, and one Boyd M. Ross went upon Bigan's property for the purpose of discussing a business matter with Bigan, and, while there, were asked by Bigan to aid him in starting the pump. Ross and Bigan entered the cut and stood at the point where the pump was located. Yania stood at the top of one of the cut's side walls and then jumped from the side wall - a height of 16 to 18 feet - into the water and was drowned.
Yania's widow, in her own right and on behalf of her three children, instituted wrongful death and survival actions against Bigan contending Bigan was responsible for Yania's death. Preliminary objections, in the nature of demurrers, to the complaint were filed on behalf of Bigan. The court below sustained the preliminary objections; from the entry of that order this appeal was taken.
Since Bigan has chosen to file preliminary objections, in the nature of demurrers, every material and relevant fact well pleaded in the complaint and every inference fairly deducible therefrom are to be taken as true: Commonwealth v. Musser Forests, Inc., 394 Pa. ...