Appeal, No. 227, Jan. T., 1963, from judgments of Court of Common Pleas of Luzerne County, Oct. T., 1960, Nos. 1336 and 1336 1/2, in case of Marilyn Brown and Barry Brown, minors, by their parent and natural guardian, Leon Brown, v. Charles H. Popky, defendant, and Leon Brown, Sandra Brown, his wife, et al., additional defendants; and Leon Brown and Sandra Brown, his wife, v. Charles H. Popky, defendant, and Shelborne Corporation, additional defendant. Judgments affirmed.
Perry J. Shertz, with him Max Rosenn, and Rosenn, Jenkins & Greenwald, for appellants.
Arthur Silverblatt, with him David J. Reedy, for appellee.
Patrick J. Toole, Jr., with him James P. Harris, Jr., for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Roberts, JJ.
Judgments of non-suit affirmed on opinion of President Judge FRANK P. PINOLA, reported in 32 Pa. D. & C.2d 108.
ING OPINION BY MR. JUSTICE MUSMANNO:
Marilyn Brown, 4 years of age, and her little brother, Barry Brown, 2 years of age, were playing on the floor of the kitchen of the apartment in which they lived with their parents, when the electric stove in the room tilted over on them, upsetting a large pot of boiling water which had been on the stove, scalding and
injuring them seriously. Through their father they brought suit in trespass against the owner of the apartment, averring negligence in the installation of the stove and failure to exercise the care which would have prevented the stove from losing balance and tipping. The trial court entered a compulsory non-suit, stating that the plaintiffs had not proved any negligence on the part of the defendant landowner. The Majority of this Court has affirmed the entering of the non-suit, and since it has adopted the opinion of the lower court as its own, I will refer to it as the Majority Opinion.
There was evidence that the floor of the kitchen was not level and the landlord knew this. There was evidence that the floor had such a pitch that the legs of the stove had to be adjusted so that the stove could rest evenly on the floor, and the landlord knew this. It was his duty, therefore to warn the plaintiffs of this hidden danger. He did not do so. It thus became a question of fact for the jury to determine whether the fall of ...