LeGrand v. Wilkes-Barre & Wyoming Valley Traction Co. , 10 Pa. Super. 12 ( 1899 )

Opinion by

William W. Portee, J.,

This is an action brought by parents for damages for the death of a son, alleged to be due to the defendant’s negligence. The facts are peculiar. The defendant company on June 12, 1894, operated an electric street railway and owned picnic grounds which were used for the pleasure of the patrons of the road and other persons, to whom the grounds were at times rented. On the day above named, a number of children from the Hancock school, in Wilkes-Barre, arranged to hold a picnic. It was agreed with the defendant that the children should pay ten cents for car fare for the round trip and for the use of the picnic grounds.

Within an hour or more of the arrival of the party, the plaintiff’s son was drowned in a pond or lake, which formed a part of the park. The pond was constructed by damming a small creek, and was intended for boating purposes. Part of the channel of the creek was deepened to adapt the pond to these purposes. The pond lay some distance below the main part of the picnic grounds. To it the plaintiff’s son, with a number of boy companions, went, and, removing their clothing, proceeded “to go in swimming.” At the point where they entered the water, the bottom descended gently for a number of feet. It then came to a place where the channel suddenly deepened to some six feet. The plaintiff’s son went out to this point, got into the deep water and was drowned.

The case presents the question, Was the boy’s death due to the defendant company’s negligence ? There is no negligence in maintaining a pond in a public pleasure park. Its presence in such a place is not an invitation to adults or children to bathe therein. In the absence, then, of any invitation by sign, or by visible appliances or .preparations for bathing, the company might presume that no one would attempt to bathe in a place of such public character, notwithstanding the fact that the pond was more secluded than some other parts of the park. The mere presence of a pond in a public pleasure park does not necessarily impose upon the proprietor the obligation to inform all comers by notice that they shall not bathe, nor to post a guard to enforce an observance of such conduct. There may be circumstances when either or both of such courses may become desirable or even necessary, but no such circumstances are made to appear in this case.

If the presence of the pond was no invitation, its condition or construction only becomes important, in respect to negligence, if it put in peril those who were using it or were about it for a lawful or usual purpose. There was nothing in the condition of this pond, as disclosed by the testimony, which endangered those who were upon its banks or were encroaching upon its margin. This marks a clear distinction between the present case and that of Barthold v. Philadelphia, 154 Pa. 109. This was not a pitfall which demanded protection or guard. It was not an improper construction.

To hold the conduct of the defendant in this case to be negligent, would, we believe, be a step in advance of any liability yet recognized by the law. The defendant’s relation to its visitors imposes the exercise of care, but to sustain this judgment would be carrying the obligation too far. Thus finding that the defendant was not convicted of any negligence by the testimony presented, we enter upon no discussion of the question of the contributory negligence of the plaintiff’s son. We are of opinion that the defendant company was entitled to binding instructions, and that the judgment must be reversed.

Judgment reversed.