Cosgrove v. Hay , 1913 Pa. Super. LEXIS 35 ( 1913 )

Opinion by

Henderson, J.,

The plaintiffs’ son aged about five and one-half years, was drowned in a cistern in a barn owned by the defendant. The accident occurred in the middle of the day while the defendant and William Gilmore who was working for him were in the barn. The top of the cistern was on a level with the barn floor and the defendant had removed the lid a few minutes before. The evidence for the plaintiffs was that the little boy was with the defendant and Gilmore on the street at the barn door; that the door was opened by the defendant when he and Gilmore and the boy went into the barn, after which the door was closed; that the barn was dark under ordinary conditions and especially so when the front door was closed, and that the boy fell into the cistern soon after the defendant took off the lid. It was shown on behalf of the defendant that when the boy was with them on the street he told him to go away; that he did not want him about and that he did not know the boy was in the barn until his attention was called by Gilmore to the fact that he had fallen into- the cistern. The testimony was brief and was submitted to the jury on the inquiry whether the boy went into the barn with the permission or knowledge of the defendant. This inquiry having been answered in the affirmative the defendant contends that the evidence does not support the judgment; that the boy was a trespasser on the premises and that the defendant owed him no duty except to avoid willful and wanton injury. Assuming that the case is as disclosed by the evidence of the plaintiffs the two men and the boy were standing at the bam door, the boy being between them and close to each of them; they then went into the barn and the defendant closed the door; when the door was closed it was not light inside; the defendant immediately removed the cover from the cistern and stepped to the wall to find a torch which he was about to light .tp, enable him to recover a bucket which was in the cistern; while he was engaged in this search the boy fell into the hole. The plaintiffs’ evidence located the cistern at from eight to ten feet from the door and the defendant’s, at about fourteen and one-half feet. The defendant was a few feet from the cistern when the accident took place. This evidence we think permits the reasonable inference that the boy was in the barn with the permission of the defendant and was at least a licensee on the premises. If the defendant knew that he went into the barn with him after which the door was closed as the plaintiffs allege, a jury could well conclude that he was there with the defendant’s permission, and while he had no business with the owner or with any other person on the premises he occupied the position of a volunteer or licensee. He was not a trespasser under such circumstances. A mere license or permission to enter or pass over premises will not impose an obligation on the part of the owner or person in possession to provide against the danger of accident. Where one is an invited guest the degree of care required is that of a licensor and licensee which requires only that the licensor shall not set traps for the licensee and shall refrain from reckless, willful or wanton misconduct tending to injure him. The owner gives the volunteers permission to use the premises and impliedly agrees that he will not create pitfalls for them or wrongly do anything to their injury, and where one is impliedly invited to enter on premises the host is under obligations to disclose concealed dangers. This is a general rule in this class of cases: Campbell on Negligence (2d ed.), 64; Hart v. Cole, 156 Mass. 470; West v. Poor, 196 Mass. 183. Applying this principle to the facts as found by the jury we have the defendant opening a pit on the barn floor near to the place where the boy was in a dimly lighted room. With the knowledge which the defendant is presumed to have had of the disposition and propensities of children of the age of this one to move about and gratify their curiosity it cannot be said that he owed no duty under the circumstances to refrain from creating a condition the existence of which produced a result so disastrous. The defendant’s version of the case would excuse him from responsibility, for he was not aware that the boy was in the barn. Some discrepancies between his testimony at the trial and that given by him at the hearing by the coroner or the manner of the witnesses on the stand led the jury to discredit his statement and over that conclusion we.have no control. We are of the.opinion, however, that there is evidence supporting; the allegation of. the*plaintiffs that the boy was on the premises if not at the invitation at least by permission of the defendant and that being the case it was the duty of the latter to refrain from putting peril in his way.

The evidence offered on the subject of damages was all that could have been shown under the circumstances. The age and health of the child, the cost of his maintenance and the occupation and circumstances of the parents were shown. In making an estimate of the value of the life and consequent damage by death much is léft to the sound discretion of the jury: Penna. R. R. Co. v. Zebe et al., 33 Pa. 318; McCleary v. Pittsburg Rys. Co., 47 Pa. Superior Ct. 366. Courts endeavor to define the measure of damages with precision but the application of the rule must be left to the jury. They are as competent to estimate the earning capacity of this child as would any witness be. The verdict is not extravagant and the jury evidently applied the instructions given by the court on that subject with discretion. On a careful consideration of the whole case we are of the opinion that the court was not in error in submitting it to the jury and that the instructions on the question of damage were correct.

The judgment is affirmed.