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Novicki v. Blaw-Knox Co.

June 14, 1962

HARRY NOVICKI, A MINOR, BY HARLAN NOVICKI, HIS GUARDIAN, AND HARLAN NOVICKI AND MARY NOVICKI, APPELLANTS,
v.
BLAW-KNOX COMPANY, A CORPORATION.



Author: Hastie

Before BIGGS, Chief Judge and HASTIE and GANEY, Circuit Judges.

HASTIE, Circuit Judge.

The question on this appeal is whether the evidence warranted a verdict for the plaintiffs in an action against a landowner for negligent injury of an infant trespasser.

In several respects this case is an almost classic example of injury to a child caused by an attractive nuisance. Appellee, Blaw-Knox Co., is a manufacturer whose premises include a large open area near a housing project. In that area appellee was accustomed to assemble and leave bulky machines and materials for which it had no future use pending disposition of the accumulation as scrap or junk. The landowner was aware that children frequently played in this area and upon the discarded machinery. One of these habitues was the minor plaintiff, Harry Novicki. According to his testimony, his parents had ordered him not to play in the area but he had persisted "because it was fun playing on the steel things".

The day of the accident was the day following the minor plaintiff's 10th birthday. He and another boy undertook to play with and upon one of the discarded machines in appellee's yard. The machine was a large press. It was mounted on a low platform one step above the ground. Its operation involved the rotation of exposed wheels that were geared to each other. There was one large wheel about 5 feet in diameter. Its perimeter consisted of cogs that engaged cogs on a smaller wheel immediately below. The wheels were not locked or secured in any way. It was feasible for a boy to grasp a spike of the large wheel with his hands and to wrap his legs around another spoke. If the wheel was then rotated, the rider would turn in cartwheel fashion.

On the occasion of the accident the plaintiff and another boy undertook to ride the large wheel in the described manner. The companion rode first. Plaintiff then attempted to ride in the same way. However, there was grease on the spoke of the wheel that he had grasped with his hands. In some manner his foot slipped and his hands lost their grip on the slippery spoke. He fell from the rotating wheel and his hand was mangled between the perimeter of that wheel and the meshing cogs of the wheel to which it was geared.

Along with a general verdict for the plaintiffs, a jury found specially that the defendant had been negligent and the minor plaintiff had not been contributorily negligent. Pursuant to these findings the jury awarded the minor plaintiff $9000 for injuries involving the amputation of a finger and the mutilation of a thumb. The sum of $1219.47 was awarded to the child's parents. However, on motion for judgment in accordance with an earlier motion for a directed verdict, the trial court set these awards aside and entered judgment for the defendant. It is from this judgment that the plaintiffs has appealed.

The accident occurred in Pennsylvania and liability is governed by the tort law of that state. The controlling general principles of law were correctly stated in the charge to the jury and they are not in dispute.

In Pennsylvania, Section 339 of the Restatement of the Law of Torts, is consistently accepted and applied as an authoritative statement of the principles which determine liability in a case like this. Indeed, the Supreme Court of Pennsylvania has stated explicitly "that § 339 has been adopted in toto by this Court and is the law of this State". Dugan v. Pennsylvania R.R., 387 Pa. 25, 31, 127 A.2d 343, 346. Accord Hyndman v. Pennsylvania R.R., 1959, 396 Pa. 190, 152 A.2d 251; Thompson v. Reading Co., 1942, 343 Pa. 585, 23 A.2d 729. That section reads as follows:

"§ 339. ARTIFICIAL CONDITIONS HIGHLY DANGEROUS TO TRESPASSING CHILDREN.

"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 with 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."

On this appeal, the landowner attempts to justify the judgment notwithstanding the verdict on the theory that the jury could not reasonably have found that the requirements of subsections (b) and (c) of § 339 had been met in this case. It is argued that to children in the plaintiff's class or category the abandoned machine created no "unreasonable risk * * * of harm" within the meaning of subsection (b), apparently because the record was thought to show that the plaintiff could ...


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