Appeal from judgment of Court of Common Pleas of Bedford County, May T., 1966, No. 225, in case of Roy E. Karns, individually and as parent and natural guardian of Lawrence Karns, a minor, et al. v. Tony Vitale Fireworks Corporation et al.
I. Samuel Kaminsky, with him Harold Kaminsky, E. W. VanHorn, Jr., and Kaminsky and Kelly, and VanHorn & Snyder, for appellants.
Louis Anstandig, with him Richard C. Schomaker, and Egler, McGregor & Reinstadtler, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Jones. Mr. Chief Justice Bell joins in this dissent.
This is an appeal from a judgment of the Court of Common Pleas of Bedford County sustaining defendant-appellee's motion for a judgment on the pleadings as against plaintiff-appellant Roy E. Karns.
The pleadings disclose that appellant's children found an unexploded aerial bomb at the Bedford County Fair Grounds where, several weeks earlier, appellee had staged a fireworks display. Appellant's children brought him the device. Subsequent events are narrated in appellant's complaint as follows:
"After the children of the plaintiff gave the plaintiff the aerial bomb in question, the plaintiff, not knowing that the same was an unexploded firecracker and wishing to determine whether his children could safely play with the object in question, removed the top from the same and poured a part of the contents on the ground and attempted to ignite the contents. After the contents failed to ignite, the plaintiff, holding the remainder of the contents of the bomb, in his hand, turned from the scene when suddenly the firecracker held in the plaintiff's hand, violently exploded . . . ."
The trial court ruled that appellant was guilty of contributory negligence as a matter of law. Unfortunately, the basis for this conclusion is never clearly articulated in the trial court's opinion. In the crucial paragraph of its discussion the trial court first summarized appellee's contentions as to what the pleadings demonstrated as follows:
". . . Roy E. Karns, knowing that the object he had received from his child or children was an unexploded aerial bomb, and knowing or suspecting it was dangerous, nevertheless held it in his hand while he examined its contents and deliberately ignited it, thereby causing the injuries complained of to himself and his son." Immediately following this summary the trial court made several conclusory statements to the effect that appellant was contributorily negligent as a matter of law. It is not clear whether the trial court reached its conclusion as to appellant's contributory negligence on the basis of the facts as set forth in appellant's complaint or on the basis of the facts as outlined in its
summary of appellee's "contentions." Whatever the ...