Carr v. Southern Pennsylvania Traction Co. , 253 Pa. 274 ( 1916 )

Opinion by

Mr. Justice Potter,

The single cause of complaint upon the part of appellant in this case is the refusal by the court below to give binding instructions in favor of defendant. It was charged with negligence in permitting its employees to build a fire upon its premises, and in permitting the fire to remain unguarded, with the result that a young child came in from the nearby street and was apparently attracted to the fire, and was severely burned. It appears from the record that at the trial the plaintiff offered evidence tending to show that defendant owned a vacant lot of ground adjacent to its car barn, and extending along Fourteenth street in the City of Chester; that prior to the accident in question the lot had at times been used by the children of the neighborhood as a playground, and that it was sometimes used by defendant’s employees for that purpose, and that they at times amused themselves by playing ball there with the children. A hedge ran along the lot on Fourteenth street, and through the hedge was an opening for a driveway; at that point the hedge turned in for a short distance. Near the corner formed by the turn of the hedge, a shallow pit was located, which was used by defendant’s employees for burning rubbish and waste material. The' pit was situated within twelve feet of the sidewalk, and was only a few feet from the driveway. There was testimony tending to show that there were openings in the hedge near the pit, and that access could readily be had to the pit by passing in at the driveway and going a short distance around the end of the turned in portion of the hedge. It further appeared that it was customary for the employees of the defendant to burn rubbish in the pit, as occasion arose, several times each week. Upon the morning of December 14, 1912, a fire, which was left unattended, was started by some of the employees in the pit. Shortly before noon the fire was seen, by persons passing, to be blazing and smoking. A little four-year-old child, Mary Carr, was at the time playing across the street, on the steps of her father’s house; shortly afterward the child was seen standing near the fire in the pit with her clothing in flames, and before she could be reacted and the flames extinguished she was badly burned. Under the testimony, the question of the negligence of defendant’s employees in leaving unattended a fire upon the premises so situated that children playing in the vicinity might be drawn to it to their injury, was for the jury. That the fire was kindled upon a windy day, and left unguarded upon a lot which was of easy access from the street, and that the children of the neighborhood had, from time to time, been permitted to play upon the lot, was not denied. The facts of the case bring it within the principle of the decisions in Rachmel v. Clark, 205 Pa. 314; Henderson v. Continental Refining Co., 219 Pa. 384; Milium v. Lehigh & Wilkes-Barre Coal Co., 225 Pa. 214.

The assignments of error are overruled, and the judgment is affirmed.