Rumovicz v. Scranton Electric Co. , 44 Pa. Super. 582 ( 1910 )

Opinion by

Porter, J.,

The opinion filed by the learned judge of the court below, which will appear in the report of this case, fully vindicates his action in entering judgment in favor of the defendant non obstante veredicto. The evidence disclosed that the wire which was averred to have caused the injury of plaintiff was inside one of the buildings of the plant of the electric light company, and that some time prior to the occurrence one or more of the panes of glass in a window of the building had been broken by boys throwing stones. This window was in the end of the building which stood back on the private property of the defendant between fifteen and twenty-five feet from the side of a road which led from the village out into the country. The evidence failed to clearly disclose just how the plaintiff was injured, but if it was caused by the wire, the maintenance of which was the only act of negligence averred in the statement of plaintiff, it could only have been caused by the plaintiff having, while standing outside the building, passed his hand through the opening where the pane of glass had been broken and touched the wire. There was no evidence from which a jury should have been permitted to infer that the wire had been placed in position and maintained by the defendant for the purpose of injuring anyone or for any other unlawful purpose, and as the burden was upon the plaintiff that element is eliminated from the consideration of the case. There was no evidence that any person, whether child or adult, not an employee of the defendant company had ever been permitted or invited to enter the building. The wire was entirely within the brick building used by the defendant and, in the absence of evidence to the contrary, it must be assumed to have been used there for a lawful purpose. The learned judge of the court below held, we are convinced correctly, that the case was ruled by Thompson v. B. & O. Railroad Co., 218 Pa. 444, and clearly drew the distinction between that case and Henderson v. Refining Co., 219 Pa. 384, and Walsh v. Railways Co., 221 Pa. 463. Counsel for appellant have argued in their brief that the decision in Thompson v. B. & O. Railroad Co., 218 Pa. 444, has been qualified by the Supreme Court in Milium v. Lehigh & Wilkes-Barre Coal Co., 225 Pa. 214, which was decided after the judge of the court below had filed his opinion in the present case. There is nothing in the opinion in Millum v. Coal Co., nor in the facts upon which it is based to sustain the contention of counsel. The ground upon which the decision in Thompson v. The Railroad Co. was decided was that the plaintiff in that case was a trespasser upon the property of the defendant and the latter owed him no positive duty of protection. The position in which the evidence placed the plaintiff and the obligation which that position imposed upon the defendant were thus stated in the opinion by Mr. Justice Fell: “He (the plaintiff) was where he had no right to be, on the property of the defendant, which it was using in a lawful manner for a lawful purpose in the conduct of its business. It owed him the duty not to injure him intentionally but it was under no duty actively to take care of him either by keeping him out of the yard or by protecting him after he had entered it from his own acts or the acts of others who, like him, had entered without permission. There was no negligence unless there was a breach of duty. There was no breach of a duty to an adult. An owner of land is not hable for its condition to an adult who enters without permission. Unless a different standard of duty is to be established as to a child, there was no liability in this case.” There is nothing to be found in the opinion in Millum v. Coal Co. which can properly be taken as qualifying or limiting the principle above declared to be applicable, when one who is injured is a mere trespasser upon the property of another. The decision in Millum v. Coal Co. was put upon the ground that, “Where the owner of property invites or permits its use by the public, as a common, or for a playground, or a picnic ground, it is certainly the duty of the owner to use reasonable precautions to protect the public from the operation of dangerous machinery located thereon. Under such circumstances, a different duty is imposed upon the owner, from that required of him towards those who are merely trespassers upon his property.” In that case the defendants were operating machinery, which might be dangerous, in an open unfenced field, to which all persons had access and which was used for purposes of a playground and at times as a picnic ground. The plaintiff was a child of tender years and it was held that he was not a trespasser. The opinion quotes with approval the language of Mr. Justice Agnew, in Kay v. Pennsylvania Railroad Co., 65 Pa. 269: “The case is altered, when by a license to others, they have devoted this ownership to a use involving their interest and their safety; and by sufferance permitted the public to enjoy a privilege of passage which might bring their persons into danger.” The act of the plaintiff in the present case in putting his hand through the opening in a broken pane of glass was the uninvited intrusion of a trespasser, which this defendant could not reasonably be required to anticipate and guard against, as is clearly ruled by Thompson v. B. & O. Railroad Co., 218 Pa. 444.

The argument of counsel for the appellant is in part based upon certain facts which we do not consider to have been established by evidence, one of which is the assertion that the building in question was used as a storage house, or junk shop and that there was no necessity for the maintenance therein by the defendant of wires charged with an electric current. The evidence wholly failed to establish these facts. The plaintiff did not see fit to call any witness who had ever been inside the building or knew anything about the purposes for which the wires therein were maintained. There was no specific evidence as to the uses to which the building was devoted, and the witnesses who were called had merely directed their attention to the window and the location of the wire with respect thereto. There was, as we have already said, nothing in the evidence which could warrant the suggestion that the wires were not maintained for a lawful purpose. The paper-book contains this assertion: “In the Milium case there seems to have been nothing particularly designed to attract the attention of children: in this case there was a donkey in a pen close to the window where the accident occurred.” This attempt to show that the defendant was maintaining “an attractive nuisance,” upon the premises, which might be dangerous to children, has for its only foundation the fact that a mule was sometimes kept in a small building or shed twenty-five feet away from the window in question and in a separate building. The “attractive nuisance” was not in the building through the window of which the plaintiff thrust his hand.

The judgment is affirmed.