DocketNumber: Appeal, 188
Judges: Schaffer, Maxey, Drew, Linn, Stern, Patterson, Parker
Filed Date: 10/6/1942
Status: Precedential
Modified Date: 10/19/2024
Plaintiffs brought this action of trespass to recover damages for the death of their minor son, aged thirteen years and four months, caused when he was struck on August 7, 1940, by an aeroplane about to land on Bettis Field, Allegheny County, Pennsylvania. A verdict was directed in favor of one of the defendants, the pilot of *Page 608 the plane, and the jury found against the others, the operators of the field, in the sum of $3,882. They brought this appeal from judgment entered on the verdict after the refusal of the learned court below to grant the motion for judgment n. o. v. or the motion for a new trial.
Bettis Airport is a tract of 86 acres containing administration buildings, hangars, and landing field. It is private property under the control of defendant operators, who conduct a flying school there. The field has been devoted to general aeroplane activity for more than ten years. Its southeastern portion is bounded by a six-foot fence extending in a curve along the Pittsburgh-McKeesport Highway on the south and the Bull Run Road on the east. Inside the fence, and following along it in a curve parallel to the two roads, is what plaintiffs' witnesses described as a "road", which was contiguous to the landing field, was composed of a substance similar to that of the runways, was wide enough for two automobiles to pass, and led from the end of the fence on the Bull Run Road to a gate on the Pittsburgh-McKeesport Highway. Plaintiffs' son, who was a student in junior high school, and several other boys of approximately his age had intermittently for a considerable period of time prior to the accident frequented the area around the hangars, a comparatively safe place, with the knowledge and consent of the management. There was also evidence that they rode their bicycles up and down the "road" in question, though it did not appear that this was done with defendants' consent. While there was no testimony that aeroplanes ever landed on the "road", the boy's father, one of the plaintiffs, said that he had seen them fly over it preparatory to landing on the part of the field immediately adjoining, and one of his son's companions admitted that they never walked across the middle of the field on account of the danger from planes. Plaintiffs' son was riding his bicycle in a westerly direction on this "road" about twenty-five feet from the fence, when he was struck by the landing gear of a plane still in the air coming in from the south across the fence. *Page 609
From this evidence, all of which is considered in the light most favorable to plaintiffs, defendants are charged with negligence, solely on the ground that they allowed this boy and other children of approximately his age to use the "road" as a playground for such a length of time as to amount to an invitation to use it for such purpose, when they knew that a dangerous condition existed there. In thus basing their right to recover on the "playground rule", plaintiffs concede that their son was a trespasser on the "road", even though he was a licensee in the area around the hangars, and this is clearly correct, for a license does not extend beyond the area to which the permission applies: The Pennsylvania Railroad Company v.Zebe,
But even if the part of the grounds where plaintiffs' son was fatally injured had been shown to be sufficiently used by children to constitute it a playground, thus imposing upon defendants a duty to exercise ordinary care to children trespassing thereon, we are nevertheless of the opinion that no breach of this duty has been shown. While liability under the playground rule does not depend upon the existence of an "attractive nuisance" on the premises, the conduct required of the landowner in the fulfillment of his duty to trespassing children obviously involves no greater amount of caution under the playground rule than under the attractive nuisance doctrine. The latter was the subject of our recent consideration in Thompson v. Reading Co.,
In the instant case plaintiffs' son was a normal boy almost thirteen and a half years old. He was a junior high school student. He and his companions had frequented the field once or twice a week for about three years, and had seen numerous planes fly over the "road" and land immediately beyond. The plane which hit him was clearly visible for a sufficient time before the accident for him to see and avoid it. It would be lacking in realism to say that the risk of being struck was not fully appreciated by him. Under the circumstances no one in defendants' position could have foreseen that he would ride into a danger so obvious and so well known to him. There being no duty on their part to anticipate such a happening, they cannot be charged with negligence in failing to do so.
The cases relied on by plaintiffs and the court below do not deal with the principle here involved, and are clearly distinguishable. In Hogan v. Etna Concrete Block Co., supra, minor plaintiff five years old was caught beneath a small railroad car which unexpectedly began to move. In Martinez v.Pinkasiewicz,
Judgment reversed and here entered in favor of defendants. *Page 613
McCallister Et Ux. v. Homestead Boro. ( 1936 )
Hogan v. Etna Concrete Block Co. ( 1936 )
Thompson v. Reading Co. ( 1941 )
Pietros Et Ux. v. Hecla C. C. Co. ( 1935 )
Pennsylvania Railroad v. Zebe ( 1858 )
Fitzpatrick v. Penfield ( 1920 )
Murdock Et Ux. v. Pa. Railroad Co. ( 1941 )
Martinez v. Pinkasiewicz ( 1935 )
Rahe v. Fidelity-Philadelphia Trust Co. ( 1935 )
Noonan Et Ux. v. Pa. Railroad Co. ( 1937 )
Weimer Et Ux. v. Westm'd Water Co. ( 1937 )
Irwin Savings & Trust Co. v. Pennsylvania Railroad ( 1944 )
Gourley v. Pittsburgh ( 1945 )
Porreca v. Atlantic Refining Co. ( 1961 )
Dumanski v. City of Erie ( 1943 )
Bartleson v. Glen Alden Coal Co. ( 1948 )
Jack Kravetz, a Minor by Saul Kravetz, Parent and Natural ... ( 1958 )