This case arose out of the facts of a particularly sad and distressing accident. It is a combined action of a *Page 280 personal representative, Irwin Savings Trust Company, brought to recover damages for the estates of four minor children of one family, ranging in age from about three to eight years, and also damages for their parents, because of the drowning of the children in a pool of water partly upon property of defendant and partly upon property of an adjacent owner, which had been formed by the diversion of the waters of a small stream by the failure of defendant to keep open a culvert beneath its track.
At the trial, binding instructions for defendant having been refused, the case was submitted to the jury and verdicts were returned for each of the minor's estates and for the parents. Upon refusal of motions for judgment n. o. v. and a new trial and the entry of judgments on the verdicts, defendant took these appeals.
In considering the motions for judgment n. o. v. we will view the evidence in the light most favorable to plaintiffs, as we are required to do while considering a motion of this kind:Anstine v. Penna. R. R. Co., 342 Pa. 423, 20 A.2d 774.
The scene of this tragic accident was a very rural section of Little Sewickley Creek Valley in Westmoreland County. About 1890 defendant made a survey there for a single track branch line, and shortly thereafter the line was built; an embankment about 18 feet in height was filled in between low ground or marsh land and Little Sewickley Creek. A three-foot stone and pipe culvert was placed to carry a small sulphur stream under the track, and it was located about 400 feet from the lower end of the marsh. For many years this low ground was swampy with water in varying amounts, more in winter than in summer, but never amounting to much. About two years before this accident, the culvert became blocked by debris which had flowed into it, and the water which should have passed through it was diverted and flowed back over the low ground or marsh and formed a pool about 250 feet in length, about *Page 281 90 feet across at its widest point, with a depth of 10 to 12 feet toward the center. This pool was plainly visible from the railroad track and defendant's foreman, whose duty it was to keep the culvert open, passed this place many times in the two years before the accident but did nothing to remedy the condition. There is no doubt defendant knew, or should have known that the culvert was closed for a long period of time, and that the water that should have gone through it had formed a large pool on its land and that of an adjacent owner. That defendant was negligent in not opening the culvert and releasing the water, is conceded. That such could be done and at small cost is admitted.
The Kustro family lived on a farm south of the valley, distant about 500 feet from the pool. There are a few other houses close by, one on adjacent property occupied by Mike Montecupo. There was testimony that a number of children played around the pool in the summer and on the ice in the winter.
On Sunday, March 23, 1941, the Kustro children were invited to play on the Montecupo property and they were there with John Montecupo, the neighbor's boy, nine years of age, when they decided to go to the pond. His testimony follows: "Q. What did the children do? A. Went straight on the ice. Q. What were they doing? A. There was a kite up a tree with a string coming, there was a string — Q. Where was the string? A. The string was on the pond. Q. What did they do? A. Yunko took hold of the string. Q. Yunko, that is Johnny, Jr.? A. Yes. Q. Then what happened? A. Then the string broke, then they was walking up around like by the string and Mary fell in. Q. Where did Mary fall in? A. About almost in the middle. Q. Was there ice on there at that time? A. Yes. Q. Then what happened to Mary? A. Then Yunko wanted to go after her, he went; Peter wanted to go after him, he went. Anna fell in — I mean I called her. She said she was going to jump too so she went. Q. You called her? *Page 282 A. Yes. Q. Why did you call her? A. I didn't want her to go in. Q. What did she do? A. She jumped in. Q. Did they come up again? A. No. Q. Then what did you do? A. I went up to my dad." The mother testified: "Q. On this Sunday afternoon did you know that the children were playing with a kite? A. Well Mary, she was home, she had a kite at home. Q. She did have a kite at home? A. Mary had a kite but Junior didn't have any and he was trying to make one. I was in bed, I seen him through the window, he had a butcher knife and he was trying to make one but he couldn't make it."
When the accident was reported help was summoned and the bodies of the children were removed from the water at a point where the depth was ten or twelve feet. It was testified that the string of the kite was fastened "tight on the hand" of two of the children.
The children were not trespassers, they had a right to be on the Montecupo property, having been invited there by the tenant. But owner and tenant testified they had not given defendant any permission to place the pool on their land, and it must be conceded that defendant was a trespasser in so doing. This case must not be confused with those where the injured person is a trespasser on property of another who causes the injury. But even if the children were trespassers, "The defense of no liability for injury to a trespasser is personal to the owner of the premises trespassed upon; it does not inure to the benefit of strangers to the title, adjoining owners, or other trespassers": Fitzpatrick v. Penfield, 267 Pa. 564,574, 109 A. 653.
The so-called "playground" or "attractive nuisance" cases likewise have no application here. This is obvious because the children were not upon defendant's premises. In the former the use of private grounds by trespassing children must be such as to cause the place in the immediate vicinity to be generally known as a recreation center: Prokop v. Becker, 345 Pa. 607,29 A.2d 23. We do not have anything of that kind here. To constitute *Page 283 the latter, the owner must maintain on his premises an object or instrumentality, by which if left unguarded a child with his natural curiosity to investigate may by playing with it, setting it in motion, or running against it sustain an accident: Pietros v. Hecla C. C. Co., 118 Pa. Super. 453,180 A. 119. We have nothing of the kind here because a pool or pond is not an attractive nuisance where there is no unusual danger: Murdock v. Pa. Railroad Co., 150 Pa. Super. 156, 27 A.2d 405; 20 R. C. L., Negligence § 85, p. 96; 36 A.L.R. 34.
It is strongly urged the case should not have been submitted to the jury. The record shows that there is not a particle of conflict in the evidence and therefore we are bound to conclude that the question of proximate cause was for the court. Where it is alleged that an injury arose from negligence the question of the proximate cause is to be decided by the jury upon all the facts of the case, but where the facts are undisputed, and the intervening agency is manifest, it is not error for the court to withhold the evidence from the jury: Hoag v. LakeShore Michigan Southern Railroad Co., 85 Pa. 293; WestMahanoy Township v. Watson, 112 Pa. 574, 3 A. 866; Rugart v.Keebler-Weyl Baking Co., 277 Pa. 408, 121 A. 198; Leoni v.Reinhard, 327 Pa. 391, 194 A. 490; Joseph v. United WorkersAssn., 343 Pa. 636, 23 A.2d 470; McGrath v. E. G. Budd Mfg.Co., 348 Pa. 619, 36 A.2d 303.
Defendant's principal contention is that it could not have been reasonably anticipated or foreseen that its failure to keep its culvert open would result in this unfortunate accident to these children while playing with or chasing their kite. Unless such action by defendant was the proximate cause of the accident it is not liable in damages. We said in Hoag v. LakeShore Michigan Southern Railroad Co., supra, p. 298: ". . . in determining what is proximate cause, the true rule is, that the injury must be the natural and probable consequence of the negligence — such a consequence as, under the surrounding *Page 284 circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act." And in Rugart v. Keebler-Weyl Baking Co., supra, we approved the following language of the learned court below, p. 413: "Without attempting to define formally what is meant by the term 'proximate cause', we may safely affirm, in the case of a tort, that, in order to fall within this category, an act must be such as will probably result in harm, and that a cause is regarded in law as remote if an injury complained of was an unlikely or improbable consequence thereof." The test is whether the injury or death would probably result from the act of omission or commission; not whether it may result. In Pass.Ry. Co. v. Trich, 117 Pa. 390, 399, 11 A. 627, we said: "But things or results which are only possible cannot be spoken of as either probable or natural. For the latter are those things or events which are likely to happen and which for that reason should be foreseen. Things which are possible may never happen, but those which are natural or probable are those which do happen, and happen with such frequency or regularity as to become a matter of definite inference. To impose such a standard of care as requires, in the ordinary affairs of life, precaution on the part of individuals against all the possibilities which may occur, is establishing a degree of responsibility quite beyond any legal limitations which have yet been declared."
It is too much to suppose that a prudent man, of ordinary intelligence, exercising due care, and with the responsibility that was upon defendant, could have anticipated and foreseen this unfortunate happening. It would be impossible for anyone to visualize the actual occurrence, the children running out upon the ice in pursuit of the kite, of the catching of the kite in the tree near the center of the pond, the breaking of the string which was held by two of the children, of the efforts of the children to get the kite and the string, and the giving way of the ice and the tragedy that followed. *Page 285
In a somewhat analogous situation it was held in NationalMetal Edge Box Co. v. Agostini, 258 F. 109, 111, that the company was not liable for the death of a five-year-old boy, who, when playing on the roadway, as was customary and known to the company, threw a stick upon the ice in a canal under the company's control, and while attempting to recover it was drowned. There it was said: "The decedent was not moved by temptation, if any, offered by the ice upon the canal or its attractiveness to play thereon, but by his wish to recover his 'nipsie' [a stick sharpened at one end]. Therefore we need not consider what effect might be given to a situation where children have played in the neighborhood or upon the canal and without objection from the plaintiff in error, or occasions when they have sometimes been ordered away. . . . The temptation, on this occasion, to leave his place of play, and to run out upon the ice upon the canal to recover his plaything, can in no sense be said to be either due to an invitation or a nuisance which attracted children."
While it is conceded by defendant that its failure to keep open the culvert was negligence, yet the evidence here conclusively establishes that that omission was but a remote cause of the accident. The act of the children themselves in chasing their kite over the ice was the direct, proximate cause of the accident. All defendant could possibly have foreseen from its diversion of the stream was that the water might run over on the property of the adjoining owner. This conclusion is supported by a long line of cases in our own jurisdiction, some of which are as follows:
In Hoag v. Lake Shore Michigan Southern Railroad Co., supra, an engine of defendant railroad ran into a landslide, was thrown off the track, oil cars exploded and the oil took fire; the burning oil was carried down a creek, then swollen by the rain, for 200 feet and set fire to plaintiffs' property. In holding that defendant was not liable this court said, p. 298: "The probable *Page 286 consequences of the collision, such as the engineer would have a right to expect, would be the throwing of the engine and a portion of the train off the track. Was he to anticipate the bursting of the oil-tanks; the oil taking fire; the burning oil running into and being carried down the stream; and the sudden rising of the waters of the stream, by means of which, in part at least, the burning oil set fire to the plaintiff's building? This would be a severe rule to apply. . ."
In West Mahanoy Township v. Watson, supra, this court held as a matter of law that the negligent act of the township in leaving an ash heap on a road was the remote and not the proximate cause of the loss of plaintiff's horses which ran off the road and were killed by a train when the sleigh they were drawing struck the ash heap and overturned.
In Marsh v. Giles, 211 Pa. 17, 60 A. 315, a seven-year-old boy, while he and his friend were playing with one of a number of large stones which defendant had left on the unpaved footway of a back street, was injured, and this Court held that defendant's act in leaving the stones on the footway was not the proximate cause of the plaintiff's injury, inasmuch as the accident was due to the independent act of plaintiff's companion in making a use of the stone not reasonably to have been foreseen.
In Carpenter v. Miller Son, 232 Pa. 362, 81 A. 439, we held that a dealer in fireworks, who placed the rubbish from his place of business on a dumping ground, paying for the privilege, was not liable for the injuries sustained by a twelve-year-old boy who went there, picked out a piece of fireworks, carried it home and that night lit it and was hurt by the resulting explosion. There it was said, p. 365: "His [plaintiff's] injury could not reasonably have been contemplated as the result of the appellee's act in placing the rubbish on the lot. The boy's own act was the direct, proximate cause of his injuries." *Page 287
In Rhad v. Duquesne Light Co., 255 Pa. 409, 100 A. 262, the defendants' chauffeur left his car standing at the curb on a down grade, after setting the brake. A boy in passing rattled the brake, whereby it was released and the car started down the street and struck plaintiff. In holding that there was no liability on defendant's part, under the circumstances, this Court said, p. 415: "Here then we have a new, independent and unexpected factor, which was in itself the real occasion of the mischief. The effective cause of the injury was shown to be the interference of the boy, and it was not the failure of the chauffeur to use the additional precaution of turning the front wheel against the curb."
In Bruggeman v. City of York, 259 Pa. 94, 102 A. 415, it appeared that defendant municipality had raised the grade of a lot and caused water and mud to overflow the sidewalk of plaintiff; that plaintiff, while sweeping off the pavement, in an effort to remove a coil of wire which had become lodged in the sidewalk or gutter, pushed it with her broom so that it sprang back and splashed mud into her eye, causing the loss of her sight. In holding that defendant was not liable for this accident, this Court said, p. 98: "The rule is well settled 'that the injury must be the natural and probable consequence of the negligence; such a consequence as under the surrounding circumstances of the case might and ought to be foreseen by the wrongdoer as likely to flow from his acts': Swanson v.Crandall, . . . [2 Pa. Super. 85]. Such an injury as is here complained of could not be foreseen as a result of permitting mud and filth to remain in a roadway; nor could it be foreseen that any personal injury would result therefrom to a person upon the sidewalk. The immediate cause here was not set in motion by the original wrongdoer, nor was it the result of an unbroken succession of events, or of concurring causes."
In Rugart v. Keebler-Weyl Baking Co., supra, the minor plaintiff, a boy sixteen years of age, was injured *Page 288 while installing electric connections in defendant's bakery for an independent contractor. He was on top of a mixer under a water pipe, and while waiting for his fellow employee to pass the wires through a conduit, he amused himself by exchanging pleasantries with the girls employed in the bakery. For some unknown reason, one of the girls threw a piece of dough at him and it struck the sprinkler pipe nearest to him. Its impact on the pipe set off the sprinkler system and the water blinded and confused him. In this dazed condition, his arm and body became involved with a revolving shaft nearby, causing serious injuries. There we approved the following language of the learned court below, p. 413: " 'We think, however, that binding instructions to find for the defendant should have been given, because under the plaintiff's own theory as to how Frederick Rugart's arm came into contact with the shaft, the accident could not have been foreseen by the defendant as a probable result of its failure to turn off the power that caused the shaft to revolve.' "
In Matlack v. Penna. P. and L. Co., 312 Pa. 206, 167 A. 37, plaintiff's husband was killed by coming in contact with an electrically charged wire of defendant while working on a girder above a bridge. We said there, p. 209, in affirming the judgment of nonsuit entered for defendant: "The court below was correct in determining that there was not sufficient evidence of the defendant's negligence to warrant the submission of this case to the jury. In determining whether or not there has been negligence it has been held that the consequence should be one which in the light of attending circumstances an ordinarily prudent man ought reasonably to have foreseen might possibly occur as the result of his negligence."
In Leoni v. Reinhard, supra, it was held that a good cause of action is not averred by a statement of claim which alleges that defendant's truck was carrying a load of unslaked lime on the highway, that as the vehicle passed the minor plaintiff, a child twelve years of age, *Page 289 a piece of the lime fell from the truck and was picked up by him; and that he placed it in a bucket of damp earth he was carrying, and almost immediately the lime exploded and he was injured. There this Court said, p. 395: ". . . the injury to the plaintiff was not the proximate result of driving a truck loaded with lime upon the highway. The hazards that materialized into injury were so remote and unlikely that the defendant was under no duty to anticipate their existence."
The same result is reached if this factual situation is considered from another angle. Defendant clearly owed a duty to the adjoining owner not to trespass upon his ground. But there is nothing in this record to show that as to the children there was any duty by defendant to keep open its culvert. The highly remarkable circumstances which led to the accident — the children chasing their kite upon the ice, which gave way under them and caused their death — were not discernible to any human anticipation or foresight. There was no breach of duty to the children, and hence no negligence upon which a recovery can be based. In this connection, it is stated in the Restatement, Torts, § 281, comment c: "If the actor's conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the person so injured." See also Harris v. Lewistown Tr. Co.,326 Pa. 145, 152, 191 A. 34, where this Court said: "A breach of duty owed to one class of persons cannot create a cause of action in favor of a person not within the class. A plaintiff must show that as to him there was a breach of duty."
For these reasons, the learned court below erred in not determining as a matter of law that the proximate cause of the accident was the independent act of the children, and in not giving binding instructions for defendant. In this disposition of the case it is unnecessary to consider the other assignments. *Page 290
Judgments reversed, and judgments are here entered in favor of defendant.