Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1968, No. 902, in case of Mindi B. Snoparsky, a minor by her guadian, Norman Snoparsky et al. v. Sidney M. Baer and Laveer Godfrey Corporation.
Dudley Hughes, with him Detweiler, Sherr & Hughes, for appellants.
Leon A. Mankowski, with him Howard M. Girsh, for appellee.
Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell dissents. Mr. Justice Jones took no part in the consideration or decision of this case.
On May 2, 1968, minor plaintiff, Mindi Snoparsky, was injured when a stone struck her eye as she was playing with a group of children at a construction site. Her complaint alleges that seven or eight boys were engaged in a game of stone throwing and that one of them threw the stone which injured her. Named as defendants in the suit are the landowners and those engaged in the construction project; none of the children was made a party. Plaintiffs' cause of action in trespass, based upon Section 339 of the Restatement of Torts, "Artificial Conditions Highly Dangerous to Trespassing Children," alleges specifically that:
". . . On May 2, 1968, at or about 6:45 p.m., the minor plaintiff and a girl-friend were playing in and about the said sewer pipes. A group of approximately eight boys were also upon the aforedescribed land and the hill, and were engaged in a game or activity involving stone-throwing. One of the boys who was upon the hill threw a stone which struck the minor plaintiff, Mindi B. Snoparsky, as she emerged from a sewer pipe, shattering her glasses and causing severe injuries to her right eye, and other injuries, hereinafter more particularly described.
". . . At the time aforesaid, On May 2, 1968, and for a long time prior thereto, the said defendants and each of them, had notice and knowledge, or should have had notice or knowledge, that the aforedescribed construction site and hill were attractive to children, that children in large numbers did come upon and play upon the said construction site and hill, and did use the same as a playground, and that the children did engage in stone-throwing and that said stone-throwing was dangerous and likely to cause injury."
Defendants Sidney Baer and Laveer Godfrey Corporation joined twelve named children as additional
defendants. Their complaint against the additional defendants specifically alleged that:
". . . If the accident happened as alleged in the plaintiffs' Complaint, it occurred because of the negligence, wanton negligence and recklessness of each and all of the additional defendants, Stephen Glasser, Patrick Kelly, Jack Myers, Michael Krum, Marck Shapiro, Jay Blumer, Howard Kail, Robert Schwartz, Harry Levis, Joseph Casciato, Brian Feller and Barry Norman, the aforesaid negligence, wanton negligence and recklessness consisting of (a) throwing the stone or other missile which struck and injured the minor plaintiff, Mindi B. Snoparsky and (b) by word and deed giving substantial assistance and encouragement to the person who threw the stone or other missile."
One of the additional defendants, Jack Myers, preliminarily objected to the original defendants' complaint on the ground that it failed to state a cause of action against additional defendant in that it failed to state whether Jack Myers threw the stone or other missile which struck ...