Appeal from judgments of Court of Common Pleas of Allegheny County, April T., 1963, No. 1199, in case of Neil Thomas Jesko, a minor, et al. v. Abe Turk and Norman Sife, trading and doing business as Ellis Construction Company.
Kim Darragh, with him Meyer, Darragh, Buckler, Bebenek & Eck, for appellants.
James R. Duffy, with him McArdle, Harrington, Feeney and McLaughlin, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J. Dissenting Opinion by Hoffman, J.
[ 207 Pa. Super. Page 175]
This is an appeal by the defendants from judgments entered in favor of the minor plaintiff and his mother in a trespass action based on a fall by the minor plaintiff from a wall of a building which was being constructed by the defendants. The judgments must be reversed.
The facts as stated by McKenna, Jr., J., in the opinion of the court below are: "The litigation arose out of a fall by a nine-year old boy from the wall of a building which was being constructed by Ellis Construction Company for Lee Pitler at the corner of Semple
[ 207 Pa. Super. Page 176]
and Cable Streets in the Oakland district of Pittsburgh, Pennsylvania.
"The minor plaintiff lived at 3615 Dawson Street, about one block from the scene of the accident. At twilight on the evening of March 12, 1961, he went to visit a friend who lived in the vicinity. His friend was not at home. While returning to his residence he passed the construction area and decided to climb on a partially erected wall of the building. The wall was constructed of concrete block, and at its highest point was approximately twelve (12) feet high. Plaintiff climbed for some distance. As he neared the top of the wall, he felt that the blocks were loose beneath his feet. He took one or two more steps, turned around, and began to descend the wall. As he did so, one of the blocks fell from beneath him, and he lost his balance. While falling, plaintiff attempted to get a handhold on the top of the wall, but those blocks also gave way and he fell to the ground.
"Neil Jesko testified that he had seen other children playing on and around the building previously, though he himself had never done so.
"The contractor, Ellis Construction Company, was engaged in general construction and remodeling work. In 1961 it was organized as a partnership, with defendants Turk and Sife as partners. Ellis had no employees of its own, but did all of its work through subcontractors. Its contract with Lee Pitler called for the remodeling of an existing building, and the erection of a one-story building on an adjacent lot to house a laundromat. It was from this new structure that Neil Jesko fell.
"One of Ellis' partners, Abe Turk, testified at trial that children had previously trespassed on the property, and, in fact, had done some damage by pushing over sections of newly laid brick or block. Ellis erected no barriers, and employed no guard or watchman.
[ 207 Pa. Super. Page 177]
Turk did, however, ask one of his subcontractors to keep an eye on the property in the evening and on weekends. The police had also ...