DocketNumber: Appeal, 252
Judges: Keller, Cunningham, Baldrige, Stadteeld, Parker, James, Rhodes
Filed Date: 4/23/1937
Status: Precedential
Modified Date: 10/19/2024
Argued April 23, 1937. The defendant appeals in this action of trespass from a judgment obtained by the plaintiffs for the death of their minor son, 13 years of age, resulting from the falling of a freight hoist or elevator in defendant's filtration plant. *Page 203
This plant consists of a rather long, low, irregular-shaped building made up of various rooms, located on South Broad Street, South Greensburg, in the proximity of a residential district. Facing the lawn, 8 to 10 feet wide, lying between the plant and the street, are four main entrances; three have double doors and the fourth a single door, which were kept open in summer. To each entrance was attached a chain with a small sign thereon, stating "No Admittance," but most of the time the chains were down. In the plant were moving machinery, electrical equipment, and water being chemically treated. At the northern end is a "Mixing Room", where the water enters the plant and is agitated over an iron grill of a fountainlike construction. Immediately next thereto is a room for storage of chemicals. In the mixing room there was a hoist with a floor 3 by 5 feet, but without an enclosed cage, operated by means of a windlass and a chain attached at the top, to raise to the second floor alum and lime used in the filtration process. Two "V"-shaped iron rails on one side of the wall or partition between the mixing and storage rooms acted as a guide, but there was no safety device equipment to prevent the hoist from falling in the event the chain on which it was suspended broke.
The testimony offered upon the part of the plaintiffs, which must be interpreted most advantageously to them, shows that from 1930 to 1934 the children in the neighborhood frequently went into defendant's building. One witness testified that the boys were in the plant daily. There was no proof that any objection was raised to their presence, or warning given, other than the notice of no admission on the chains. This was ineffective if, by general custom, it was disregarded: Restatement, Torts, sec. 334, p. 906.
On November 3, 1934, about 10 o'clock a.m., Edward Weimer, son of the plaintiffs, with a boy companion, was passing the plant when a laborer employed by defendant, *Page 204 sitting in the open doorway, offered Edward a cigarette if he and his companion would come inside and turn the crank which raised the hoist. The boys accepted this proposition and after working a while left the plant. Edward later returned with another boy, and they assisted an employee in raising the hoist, on which had been placed four heavy sacks of chemicals. When this employee went to the second floor to remove the sacks, Edward left the windlass, went under the hoist to see if it had been raised sufficiently, and at that moment the chain broke, causing the hoist to fall, fatally crushing him.
Plaintiffs in their statement of claim alleged that the hoist was an appliance negligently constructed and maintained and that it attracted children, that the deceased boy was in the plant at the request and with the consent of defendant, acting through its servants and agents.
The appellant denied these averments and maintained that the facts proven failed to bring this case under the so-called attractive nuisance or playground rule, especially as this accident occurred inside defendant's building. It argued further that the evidence did not establish any permissive use and therefore the deceased was a trespasser; that as no proof was adduced of wilful or wanton negligence, it is not liable.
The so-called playground or attractive nuisance doctrine has been firmly established in our jurisprudence. The latest case of our Supreme Court recognizing this rule is Hogan et al. v. EtnaConcrete Block Co.,
It is unnecessary to discuss further this doctrine as in our view the evidence did not establish that the hoist was an appliance that induced the deceased boy to enter the defendant's plant or in anyway attracted him. But there was proof of a permissible use by defendant which imposed upon it the duty to use reasonable care for the safety of children frequently visiting its plant.
We concede in the beginning of our discussion of this phase of the case that the laborers working around defendant's plant had no authority to invite the deceased to assist them in their work:Flower v. Penna. Railroad Co.,
It was said in Kay v. Penna. Railroad Co.,
Recovery was allowed where a boy with the alleged permission or knowledge of the owner, went into a barn and fell into a cistern in the floor (Cosgrove v. Hay,
While there was no proof here of actual notice to the defendant, the frequency of the presence of the children over an extended period of time constituted a constructive notice, and that is sufficient: Mullen v. Wilkes-Barre G. E. Co.,
Rahe v. Fid.-Phila. Trust Co.,
We will not attempt to refer to the numerous other authorities cited, but they have been considered and we do not find them controlling in the case at bar.
Our conclusion on this branch of the case is that it *Page 207 was for the jury to consider the character of the construction of this hoist, the manner of its operation, the presence of the children, the owner's knowledge, etc., and determine whether defendant used the care legally required under the facts present and the law.
The appellant further attacks the trial court's admitting in evidence the rules and regulations of the Department of Labor and Industry, relating to the construction and maintenance of elevators in the state, and charging the jury that the violation of these rules might be considered as evidence of negligence on the part of defendant.
Whether the violation of the rules and regulations of a commission or administrative agency of government may be considered as evidence of negligence, in so far as we have been able to ascertain, has not been passed upon in Pennsylvania. It is stated in 45 C.J. p. 732, § 124: "Violation of a rule or regulation of a governmental commission or board is not negligence per se, but may afford some evidence of negligence."
In Schumer v. Caplin (N.Y.),
Although a statute or ordinance may be offered as evidence of negligence, it cannot be considered a sole basis of recovery. Likewise, we think the rules and regulations of the Department of Labor and Industry are admissible in evidence; it is not necessary to specifically plead them. In Weinschenk v. Phila.Home Made Bread Co., supra (p. 106), the court stated: "The defendant argues that, since the ordinance under consideration was not specially pleaded, it should not have been accepted in evidence at all. If plaintiff were depending upon a violation of the ordinance, as the substance of her case, there would be force in this position; but she does not so depend. The violation of defendant's duty to observe due care in relation to the elevator gates would give rise to an action for negligence on common law principles, without regard to the terms of the ordinance, and the present suit was instituted and tried upon this theory; but the ordinance points out what the municipality conceives to be due care in that respect; hence its relevancy." Rules and regulations of the Department of Labor and Industry may have been enacted primarily for the protection of employees of factories, but a violation thereof would tend to show a common law negligence, creating a liability on defendant if the deceased boy was lawfully on the premises. *Page 209
The final point raised is that evidence of precautions taken by defendant subsequent to the accident was not admissible as tending to show prior negligence. We recognize that to be the law and it is so ruled in a number of cases. See Baran v. ReadingIron Co.,
A careful consideration of this entire record fails to reveal any error in the trial of this cause warranting a reversal.
Judgment is affirmed.
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