Appeal from judgment of Court of Common Pleas of Montgomery County, No. 64-11034, in case of Glenn Goll, a minor, by Theodore Goll, his father and natural guardian, and Theodore Goll, in his own right, v. Joseph V. Muscara et al.
Joseph H. Stanziani, with him Waters, Fleer, Cooper & Gallager, for appellants.
George C. Corson, Jr., for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.
[ 211 Pa. Super. Page 95]
In this trespass action plaintiff's four year old son, Glenn Goll, was injured critically when he entered a dwelling being constructed by the defendant Muscara and fell from the second floor into the basement. Plaintiffs sued the defendant Muscara, builder and owner of the house, who joined several other defendants. The action was tried before Judge Robert W. Honeyman and a jury which returned verdicts of $7,500 for the minor plaintiff against the original defendant and $500 for the father. Verdicts were directed by the court in favor of the seven additional defendants. The defendant Muscara filed motions for a new trial and for judgment n.o.v. After argument, the court refused defendant's motion for a new trial and granted the motion for judgment n.o.v. Plaintiffs appeal.
On appeal we are required to view the evidence in a light most favorable to plaintiffs, and resolve all inferences in their favor. Bartleson v. Glen Alden Coal Company, 361 Pa. 519, 64 A.2d 846 (1949).
The accident occurred on Good Friday, April 12, 1963. The minor plaintiff, four years and three months old, crossed the street from his home, and in company with his older brother Gregory and the Malone boys,
[ 211 Pa. Super. Page 96]
played on two of the vacant lots adjoining the newly constructed house. Most of the lots in the neighborhood had completed houses built upon them by a developer other than defendant. The dwelling was of frame construction with a concrete basement. Some flooring had been laid but the front, back and garage doors had not been installed. Glenn entered the second floor of the house by a plank leading from the ground to an open doorway. While talking to his brother Gregory who was looking out a window, Glenn, walking backwards, stepped off the edge of the floored portion of the second floor and fell to the cellar, sustaining severe injuries.
Appellants rest their right of recovery upon § 339 of the Restatement 2d, Torts, entitled "Artificial Conditions Highly Dangerous to Trespassing Children", which provides:
"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that ...