Styer v. Reading

61 A.2d 382, 360 Pa. 212, 1948 Pa. LEXIS 480

• Court: Supreme Court of Pennsylvania
• Decided: April 15, 1948
• Docket: Appeals, 158 and 159
• Status: Published

Opinions

Opinion by

Mr. Justice Drew,

This is an action in trespass by a father, as guardian of his minor child, and for himself and wife, for damages sustained by them as ¿ result of personal injuries to the child at a playground conducted by defendant, City of Reading. The case has been tried twice. The first trial resulted in verdicts for plaintiffs, but, after argument, the learned court below awarded a new trial. The second trial also resulted in verdicts for plaintiffs. Defendant did not question the fairness of the trial or the amount of the verdicts by moving for a new trial, but did file a motion for judgment n. o. v. After that motion was discharged and judgments were entered on the verdicts, defendant took these appeals.

Viewing the evidénce and all inferences deducible therefrom in the light most favorable to plaintiffs, as we are required to do in passing upon this motion for judgment n. o. v., the following appear to be the pertinent facts: During the summer months for many years, the Recreation Board of defendant Municipality conducted a public playground at 16th and Haak Streets, in the City of Reading, on premises owned by Reading School District. This playground, which was under the complete control and supervision of defendant’s employes, consisted of a large open space adjoining a school building and also of a room in the basement of this school, 28 feet 5 inches long, 27 feet 5 inches wide and 9 feet high. A doorway and a descending flight of four steps led from the outdoor portion of the playground to this basement room. To the right of this doorway, a part of the room, 12 feet by 15 feet, was partitioned off for use as a boiler room, and ashes and rubbish were kept in one corner next to the partition. The remaining L-shaped space of the. room was dimly lighted by five small basement windows. In one corner there was a handicraft table. Yolleyball and badminton equipment, including shuttlecocks and racquets, as well as other playground material, were not stored away, but rather were lying in the open about the room, easily available to the children, who, with defendant’s permission, frequented this room every day during playground hours. For a long time this room had been used for handicraft work and frequently some of the children played there with a volleyball or batted a shuttlecock back and forth with badminton racquets. That the children had played, for at least three weeks prior to the accident, with this badminton equipment in this room was known to the playground leader, Miss Gehris.

At about eleven o’clock on the morning of July 22, 1942, minor plaintiff, then eleven years of age, was lawfully in this basement room with one Richard YonNeida and eight other children. Seeing defendant’s badminton equipment lying on the floor, Richard, who was also eleven years old at that time, suggested to minor plaintiff that they bat a shuttlecock back and forth between them with badminton racquets. Neither child had ever played the game of badminton. They proceeded to bat the shuttlecock to and fro, without a net between them. While they were thus playing, minor plaintiff stood inside the room with her back to the door and Richard faced her about seven feet away. Defendant’s playground leader was on duty and present in the room when these children started their play and she remained there for some time thereafter, but she did not endeavor to stop them or to warn them of the possible danger involved: After playing for about five to ten minutes, minor plaintiff told Richard that she was quitting and tossed the shuttlecock to him with her hand and glanced away. Immediately, he batted the shuttlecock back again and the rubber part struck minor plaintiff in the left eye, injuring it so that, after several operations, it had to be removed.

Defendant maintains that it is entitled to judgment n. o. v. for three reasons: (1) that there was no negligence on its part; (2) that the proximate cause of the injury to minor plaintiff was the independent, intervening act of Richard YonNeida and (3) that minor plaintiff was guilty of contributory negligence as a matter of law. We shall examine these arguments in the order presented.

In considering whether defendant was negligent, our first inquiry will be to determine what duty of care our law places upon a municipality in regard to the safety of children-invitees present upon its playgrounds. In Paraska v. Scranton, 313 Pa. 227, 229, 169 A. 434, we set forth the rule of law which is applicable here: “Where a city undertakes to manage and supervise property, such as public parks and playgrounds, it must take care to keep that property in a reasonably safe condition for those invited to come upon it, and this is particularly true in the case of children in playgrounds.” A municipality is not an insurer of the safety of children playing on its public playgrounds. However, it is well settled that in maintaining parks and playgrounds a city must exercise reasonable care: Honaman v. Philadelphia, 322 Pa. 535, 185 A. 750; Weber v. Harrisburg, 216 Pa. 117, 64 A. 905; Rockett v. Philadelphia, 256 Pa. 347, 100 A. 826; Glase v. Philadelphia, 169 Pa. 488, 32 A. 600; Barthold v. Philadelphia, 154 Pa. 109, 26 A. 304.

In Honaman v. Philadelphia, supra, and again in Stevens v. Pittsburgh, 329 Pa. 496, 198 A. 655, we cited with approval the Restatement of the Law of Torts, Vol. II, §318, and we are of opinion it is applicable here. That section reads: “If the actor, permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third’ person, and (b) knows or should know of the necessity and opportunity for exercising such control.” .

The pivotal question in this case is: Did the evidence warrant the submission to a jury of the question whether or not defendant exercised reasonable care for the safety of minor plaintiff? Our answer must depend upon a detailed analysis of the factual situation. Defendant was operating this playground under the exclusive control of its playground leader at the time the injury occurred. She, representing the City, had the duty to use every reasonable effort to control the conduct of all the children present there that day, including that of Richard and minor plaintiff. Other children, playing in the room, testified that the playground leader was present there during at least part of the time that minor plaintiff and Richard were batting the shuttlecock to each other with the racquets and that she made no effort to stop them.

The place in which they were playing obviously was hazardous for such activity, by reason of the poor lighting conditions, and of the restricted space available (which was but a fraction of the size of a regulation badminton court). The result of their inability to move freely about was that each player attempted to hit the shuttlecock directly toward his opponent rather than away from him as in a normal badminton game. The manner in which minor plaintiff and Richard were playing was also dangerous. The close proximity of tlie children to each other, 1 the use of an outdoor shuttlecock with a hard rubber tip, instead of an indoor one with a cork tip in the still air of this room, and the absence of a badminton net, all were circumstances which helped to create a dangerous situation. The significance of the lack of a regulation net is that, when present, it offers some. protection to the badminton players. When a shuttlecock is struck hard and follows a straight, flat trajectory toward.the opposing player it is caught in the net which is erected between them. All these facts and circumstances, when considered together, show clearly that these children were allowed to continue playing in a situation of obvious danger.

There is no doubt that the playground leader knew that she had the authority and ability to control these children. However, the questions to be determined, under the facts of this case, are: Would a reasonably prudent person ih her position have known of the necessity and opportunity for exercising this control, and, Was the conduct of the children a foreseeably dangerous activity which was creating an unreasonable risk of bodily harm to them? The answers to these questions are not so clear that they can be ruled on as a matter of law, but are questions upon which there may be a reasonable difference of opinion, and, consequently, are . questions solely for determination by a jury. The jury found that defendant was negligent and we ‘are of opinion that the testimony was more than ample to support its conclusion.

We find no merit in the second contention of defendant that the independent, intervening act of. Richard VonNeida was the proximate cause of the injury to minor plaintiff. It was not extraordinary that Richard would strike the shuttlecock immediately when minor plaintiff tossed it to Mm the last time. Children must be expected to act upon immature judgment, childish instincts and impulses; others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly: Rachmel v. Clark, 205 Pa. 314, 54 A. 1027; Fehrs v. McKeesport, 318 Pa. 279, 178 A. 380. Richard was engrossed in the play which was being completed. It was for the jury to determine whether his act was a normal response to the stimulus of the situation created by defendant’s negligent conduct. See Restatement of the Law of Torts, Vol. II, §447.

Nor do we agree with defendant’s final contention that minor plaintiff was guilty of contributory negligence as a matter of law. She had never played badminton nor had she seen the shuttlecock used in the basement room. She did not realize that there was danger in the manner and under the conditions she was playing with Richard. While there was testimony that at times such play in the room was forbidden, there is no evidence that minor plaintiff knew of such prohibition. We have repeatedly said that only in clear cases, where the facts are settled and there can be no reasonable doubt as to the inferences to be drawn, can a court declare contributory negligence as a matter of law: McCreery v. Westmoreland Farm Bureau, 357 Pa. 567, 55 A. 2d 399. This is not such a case, and, therefore, the question as to minor plaintiff’s contributory negligence was for the jury. Particularly is this so, since she was not quite twelve years of age at the time of the accident. In this connection, we said, in Fedorovich v. Glenn, 337 Pa. 60, 64, 9 A. 2d 358: “The question of contributory negligence of a child twelve years of age is particularly one for the jury under the decisions of this Court.”

Judgments affirmed.

Mr. Justice Patterson filed a dissenting opinion in which Justice Allen M. Stearne joins.

1 Defendant in its printed brief makes tbe following, frank admission: “The closeness of the positions in which the players were engaged, furnished the background of danger. This accident happened because they were only seven feet apart.”