Bartleson v. Glen Alden Coal Co.

I cannot join in the conclusion of the majority. As I view this case, there is nothing in the record showing a breach of duty by defendant for which it should be held liable in damages.

The Restatement of the Law of Torts, Section 339, which we adopted in Thompson v. Reading Co., 343 Pa. 585, 23 A.2d 729;Altenbach v. Leh. Val. R. R. Co., 349 Pa. 272, 37 A.2d 429, andAllen v. Silverman, 355 Pa. 471, 50 A.2d 275, provides: "A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if

"(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and

"(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and

"(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in itor in coming within the area made dangerous by it, and

"(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein." (Italics added.)

Concerning clause (c) of the Restatement, supra, this Court said, in Prokop v. Becker, 345 Pa. 607, 610-11-612,29 A.2d 23: "The use of the verb do might lead to the belief that the duty of care depended entirely upon what the child in fact realized instead of upon what he should have realized. That such is not the case, however, is readily apparent from commentb, entitled 'When risk such that children can appreciate it' (Italics added), which states that the duty of the possessor of land is 'only to keep so much of the land upon which he should recognize the likelihood of children trespassing, free from those conditions which, though observable by adults, are likely not to be observed by children or which contain risks the full extent of which an adult would realize but which are beyond the imperfect realization of children. It doesnot extend to those conditions the existence of which isobvious even to children and the risk of which is fullyrealized by them.' (Italics added.) The Pennsylvania law is in accord with this principle. . . . The principle underlying the rule is that injury to children from obvious dangerous causes is not foreseeable by the owner, and therefore he cannot be placed under any duty to remove the risk."

In the instant case, it is clear that the minor plaintiff realized or should have realized the risk of his trespassing. The extreme danger of falling from the tower or of coming in contact with the electric wires was certainly obvious, or should have been, to any normal boy of minor plaintiff's age. Therefore, since one condition of liability, i.e., that set forth in clause (c) of the Restatement, is lacking, the majority, in my opinion, is in error in sustaining these judgments in plaintiff's favor.

In this age of electricity, such high tension towers are found in all parts of this Commonwealth and nation. The vast majority of them are unfenced. Boys at an early age recognize these towers, and as a result of the constant use of electricity in their homes and neighborhood, are well aware of the dangers of electricity. That this is true is positively shown in this case by the testimony of five boys, companions of minor plaintiff and all about his age, who stated that they knew defendant's tower was an electric one and that they were aware of the dangers of electricity.

At the time of the accident, minor plaintiff was twelve years of age and had lived all his life in the vicinity of the tower. The testimony shows clearly that he was a normal boy of at least average intelligence for his age. He was in the seventh grade in school.

The photographs in evidence show at least two other towers in the immediate vicinity of the one here involved and that one of these was unfenced. There can be no question, such towers were not novel, new or strange objects likely to arouse the curiosity of a boy of minor plaintiff's age and understanding, who had lived in close contact with high tension lines from his earliest childhood. He must have been aware of their dangers.

The minor plaintiff testified that he knew what electric wires were, but that he thought when he climbed the tower that the wires might have been telephone wires. It is quite possible that he could not distinguish between telephone and electric wires. However, he cannot thus justify deliberately placing himself in close proximity, and in coming into contact with the wires, knowing there was a strong probability of great danger and serious injury. He made the risk and he tested it. Even an adult may have difficulty in recognizing the difference between telephone and electric wires, but when a person, adult or child, realizes that there is a strong likelihood of peril, he may not be heard to assert his doubts as a denial of knowledge of danger.

In DiMarco v. Penna. R. R. Co., 321 Pa. 568, 183 A. 780, a minor plaintiff not quite eleven years of age was denied recovery when injured by the collapse of a bank sustaining a foot path upon which there was a permissive way for people to walk. There, we said (p. 572): "Notice of the risk involved would have been futile in the face of such an obvious hazard. The danger arose from the existence of the cut itself, and that danger was manifest to everyone using the path. There is no duty to warn of that which is obvious." In Devine v. Armour Co., 159 Ill. App. 74, it was said in reversing a judgment in favor of a thirteen-year-old boy injured by the fall of a dilapidated building about to be razed (p. 79): "While such a building in process of destruction may be dangerous, the danger is not hidden from a child of decedent's age, while disclosed to an adult. This lad was not a mere baby. He was at least up to the average of his age. He knew as well as an adult that such a building in such condition and under such handling must fall."

In the instant case, defendant's tower and the high tension lines strung thereon fifteen feet from the ground were ordinarily safe and were properly constructed for the purpose for which they were designed. Under the circumstances here presented, it seems clear that defendant could not have foreseen that a child of minor plaintiff's age and understanding would trespass into a danger so obvious and so well known to him.

I fully realize that the law must protect children of tender years from dangers which they cannot comprehend. I also realize that a landowner is not an insurer of a child's safety. Where a dangerous object is placed out of the normal reach of children, and the children are sufficiently aware of the dangers of the object, no liability can attach to the landowner.

I would reverse the judgments for plaintiffs, and enter them,non obstante veredicto, in favor of defendant.

Mr. Justice PATTERSON joins in this dissent.