Barthold v. Philadelphia , 154 Pa. 109 ( 1893 )

Opinion by

Mr. Justice Wiletams,

The complaint in this case is that the learned judge of the court below did not give to the jury a binding direction to find in favor of the defendant. It is not the manner, but the fact, of its submission that is assigned for error; so that our question is whether there was evidence which justified the court below in submitting the negligence of the defendant, to the jury for determination. Turning therefore to the evidence we find' it was shown that the pool or well in which the plaintiff’s son lost his life was upon ground acquired by the city some six months before the accident, for the purpose of adding it to Fairmount Park. It was not only upon the public grounds but was open of access to persons of all ages. The wall that inclosed it was lower than the surrounding surface. The plaintiff’s son came to the pool to wash his shoes and sat down upon a stone which was part of or was lying upon this wall. The stone tipped under his weight and he fell backward into the water and was drowned. The stone on which he sat fell at the same time into the pool. Whether it was the exercise of proper care on the part of the city to leave this pool for six months in the condition described, open to the access of children, in the public grounds, was not a question of law but of fact, and properly submitted to the jury. We have nothing to do with the correctness of their finding. The court below was the proper place for a motion for a new trial.

The judgment is affirmed.