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decided: April 19, 1977.


No. 328 April Term, 1976 Appeal from the Judgment entered November 12, 1975, pursuant, to Order of Court of November 7, 1975 in the Court of Common Pleas of Allegheny County, Civil Division, at 3260 October Term, 1972.


Robert S. Grigsby, Pittsburgh, with him Janet N. Valentine, Pittsburgh, for appellants.

Jan C. Swensen, Pittsburgh, with him Scott, Swensen & Scott, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Van der Voort, JJ. Spaeth, J., did not participate in the consideration or decision of this case.

Author: Watkins

[ 247 Pa. Super. Page 357]

This is an appeal from a judgment entered on a verdict in favor of the defendant-appellant, Matthew Cusick, a minor; and from the denial of post-trial motions.

[ 247 Pa. Super. Page 358]

The action in trespass arose out of an incident which occurred on November 2, 1970 involving two minor boys who are cousins. The minor plaintiff and the minor defendant at that time were both eleven years of age. On the day in question these two boys and two others had been playing football at the minor plaintiff's house. When the defendant decided to go home, the other three agreed to walk him part of the way to his home. On the way home the boys took a tour down an alley which runs parallel to a football field located on one side of that alley. Opposite the football field on the other side of the alley there was a six-car garage. While going down the alley the boys, continuing their athletic play, began throwing stones at a rain gutter attached to the garage about seven feet above ground. Those boys tall enough began "dunking" the stones in the gutter in a manner imitating the basketball shot of the same name. Eventually the boys switched their stone throwing attention away from the pretended basket and directed it toward a light standard which supported lights to illuminate the football field. The boys began throwing stones at the standard and at a building beyond the standard situated between it and the football field. At this time the record indicates that all four of the boys were on the same side of the alley, i. e., the garage side, and were throwing stones at the light standard area. The record reveals no specific organization to the boys' activities although it is clear that they were loosely in a row throwing stones. There appears to have been no specific target and the stones that were thrown sailed in random directions and did not consistently strike the light standard or any other discernable target.

The exact detail of what happened next is not clear from the record and was apparently not particularly clear in either of the minor parties' recollection. At one point the record indicates that the minor plaintiff walked alone across the street and the boys quit throwing stones. In yet another it seems as though the boys quit throwing stones, then the minor plaintiff walked across the street and the other two boys followed. Although there is this conflict, it is undisputed

[ 247 Pa. Super. Page 359]

    that at the time of the injury to the minor plaintiff's eye, he was across the alley from the minor defendant. Also, it appears that at this time the defendant called out to the other boys generally and said something to the effect, "Look at my Dave Guisti windup." The plaintiff turned around and saw the defendant's arm extended and almost simultaneously he was struck in the eye with a stone. There is no conflict as to who threw the stone; that the stone thrown by the minor defendant struck the plaintiff; and as to the damages, as the minor plaintiff has been legally blind in the stricken eye since shortly after the incident.

The appellant, in his appeal from a judgment entered for the appellee in the court below and the refusal to order a new trial, has averred several errors for our consideration. The first two relating to the court's instruction on contributory negligence and assumption of risk are related although obviously distinct in their application and effect as defenses. See, Joyce v. Quinn, 204 Pa. Super. 580, 205 A.2d 611 (1964). It is the contention of the appellants that the court erred in instructing the jury that the minor plaintiff's contributory negligence and assumption of risk would bar recovery insofar as there was no evidence on the record to support such a finding. An examination of the record as to both contentions finds them to be without merit.

The record is at best conflicting and unclear as to the relative position of the four boys to each other at the time of the unfortunate incident as well as to whether or not the minor plaintiff walked across the street before or after the break in the stone throwing. Moreover, there is the difficulty in inferentially determining the purpose and duration of the "lull" in the stone throwing. And finally, there is conflicting testimony as to the position of the minor plaintiff vis-a-vis the generally defined target area. In a case when there is any question as to whether the injured person's position was dangerous, showed lack of the exercise of due care ...

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