No. 1386 October Term, 1979 Appeal from Order entered on June 19, 1979 in the Court of Common Pleas, Civil of Luzerne County at No. 9996 of 1974.
Jerry B. Chariton, Wilkes-Barre, for appellants.
George A. Spohrer, Wilkes-Barre, for appellee.
Spaeth, Cavanaugh and O'Kicki, JJ.*fn* Spaeth, J., files a dissenting opinion.
[ 277 Pa. Super. Page 274]
This case involves a claim for damages as a result of personal injuries suffered by the minor-appellant, Jeffrey Slavish, in an accident which occurred on March 7, 1973. The trial resulted in a jury verdict for the defendant. The only issue on appeal involves a part of the jury instruction on the liability aspect of the case.
Where the accuracy of a charge is in issue, an appellate court must look to the charge in its entirety against the background of evidence in order to determine whether or not error was committed and whether that error was prejudicial to the complaining party. Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970); See also Dollison v. Baltimore and Ohio Railroad Co., 446 Pa. 96, 284 A.2d 704 (1971); McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972).
The evidence indicated that Jeffrey Slavish, age five, and three playmates were playing "cops and robbers" on the premises of the appellee, John Ratajczak. During the course of this amusement, Jeffrey and one of his companions were located on a landing between two stairways located outside the Ratajczak residence. The landing which is about five and one-half feet above the ground was enclosed by railings except at one portion of the landing adjacent to the house where there is an unguarded space. The evidence as to the width of this space varied from between fourteen inches to two and one-half feet. It was through this opening that Jeffrey fell and suffered his injuries. Jeffrey, while standing on the landing, played that he got shot and then accidentally fell through the opening to the ground.
[ 277 Pa. Super. Page 275]
There was conflicting evidence as to the minor-plaintiff's legal status on the premises at the time of the accident. Depending upon which version of the evidence the jury accepted, they could find that he was a trespasser or a licensee. The court left this issue to the jury and instructed them as to the law under Section 339 of the Restatement of the Law-Second Torts 2d, Artificial Conditions Highly Dangerous to Trespassing Children as well as the law applicable to the duties of a possessor of land to a licensee on the premises. During the course of the charge, after advising the jury that the minor plaintiff because of his age could not be guilty of contributory negligence, the judge stated:
However, while you cannot consider the negligence of Jeffrey in this case, there are certain tests that apply in children's cases. And the law does provide that no danger is more commonly realized or risk appreciated even by children than that of falling. Consciousness of the force of gravity results almost from animal instinct. Certainly, a normal child nearly seven years of age, indeed any child old enough to be at large, knows that if he steps or slips from an elevated structure, he will fall to the ground and be hurt. It may be that some children, while realizing the danger, will disregard it out of spirit of bravado or because of their immature recklessness. But the possessor of land is not to be visited with a responsibility for accidents due to this trait of children of more venturesome type. . . .
This language is in substance a quotation from an opinion by Justice Horace Stern (later Chief Justice) in McHugh v. Reading Co., 346 Pa. 266, 269, 30 A.2d 122, 123 (1943). In that case the Supreme Court affirmed the grant of a non-suit in a case where a six year old child fell off an abutment and was killed. The court using the above quoted language held that the duty to protect children from dangers which they are unlikely to appreciate does not extend to the risk ...