Appeals, Nos. 239 and 240, March T., 1962, from judgments of Court of Common Pleas of Allegheny County, July T., 1958, No. 3200, in case of Nicholas Dragonjac, a minor, by Joseph Dragonjac, his guardian, and Joseph Dragonjac et al. v. McGaffin Construction & Supply Company. Judgments reversed; reargument refused December 17, 1962.
Kim Darragh, with him Meyer, Darragh, Buckler & Bebenek, for appellant.
A. Morris Ginsburg, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
Nicholas Dragonjac, the minor plaintiff who was 10 years 7 months old, sustained personal injuries as the result of a fall into the foundation of the new Fifth Ward Elementary School in Monaca, Pennsylvania. The school was then being constructed by McGaffin Construction & Supply Company, which was then in possession and control of the property on which the accident occurred.
On Sunday, June 24, 1956, at about 2:30 p.m., Nicholas Dragonjac and several companions went to the school grounds to play. They observed a number of frogs in a puddle of water outside the double foundation walls. They then heard frog-like sounds coming from the ground inside the foundation walls. They went over to investigate. At this point on the foundation wall there were two sections which were about four feet apart. Nicholas stood on the top of the outside wall and looked down between the sections and
saw a frog in a pool of water about 18 feet below the outer and inner sections of the wall. The boys were throwing stones at the frog. The minor plaintiff had picked up a stone and had his left foot on the outer wall and his right foot on the ground. He was waiting for the frog to come to the surface of the water. At this moment he lost his balance and fell approximately 18 feet between the two sections of the wall.
Nicholas testified that there was mud on the wall at the spot where he fell, but he did not clearly prove that it was the mud which caused him to fall.*fn1 Nicholas also testified that he had been repeatedly warned by his parents not to play in the construction area because he might get hurt. He further testified that he knew that he should not have been playing in this construction area.
The jury returned a verdict for the minor plaintiff in the sum of $8,500 and $1,500 (as ...