I dissent from the majority opinion. The negligence of the defendant company in failing to keep its culvert open to carry off the water from a small sulphur stream under its track (a thing which it could do at a trifling expense), and so creating a large pond on the Montecupo land is clear: Ficke v. Pa. R. R.Co., 157 Pa. 622, 626, 27 A. 783; Harber v. Pa. Ry. Co., 56 Pa. Super. 59,64-65. See also 67 C. J. pp. 869, 873, Secs. 294(2) and 296(c). This negligence is so indisputable that in this appeal the defendant Railroad Company does not deny it. It is equally indisputable that "the children were not trespassers, they had a right to be on the Montecupo property"; and children of the neighborhood played around this pool "practically every day", as one witness testified, from the time the area was flooded. In the winter they played on the ice and in the summer they played around the pool. Notice of the flooded condition, as well as the children playing there, was brought home to the defendant company not only by the length of time that this condition existed, but also by notice to its track foreman whose duties were to keep in condition this section of the track with the sewers and culverts under it and who testified that he spent his full time as foreman on this section of track which was nineteen miles long, and that for over thirty years he was familiar with the piece of ground that Montecupo leased. He said he went back and forth along this track, passed this place frequently, and worked around there as often as two or three times a week, during the year or two prior to the time when the children were drowned.
In the light of these established facts, is it "too much to suppose" (as the majority opinion says it is) "that a prudent man, of ordinary intelligence, exercising due *Page 291 care, and with the responsibility that was upon the defendant, could have anticipated and foreseen this unfortunate happening". And would it be (as the majority opinion says it was) necessary "for anyone to visualize the actual occurrence, the children running out upon the ice in pursuit of the kite, and the catching of the kite in the tree near the center of the pond, the breaking of the string, and the giving way of the ice and the tragedy that followed."
I think the sound and almost universally accepted rule is ". . . The harm which was foreseeable and the specific harm which actually resulted need not be absolutely identical __________", nor, that the defendant "could not foresee the precise manner in which the harm would occur, nor the exact nature of the harm, nor the full extent of such harm. What must be foreseen, in order to establish negligence, is 'harm in the abstract, not harm in the concrete.' The defendant need not foresee 'that an injury should occur in the exact way and to the same extent as that which did occur,' he need only foresee that some injury of a like general character is not unlikely to result from failure to use care": (italics supplied) Jeremiah Smith in Legal Cause in Actions of Tort, "Selected Essays on the Law of Torts" 649, p. 690.
Professor Harper in his treatise on the Law of Torts (January 1940) says: ". . . the courts are perfectly accurate in declaring that there can be no liability where the harm is unforeseeable, if 'foreseeability' refers to the general type of harm sustained. It is literally true that there is no liability for damage that falls entirely outside the general threat of harm which made the conduct of the actor negligent.The sequence of events, of course, need not be foreseeable. Themanner in which the risk culminates in harm may be unusual,improbable and highly unexpectable, from the point of view ofthe actor at the time of his conduct. And yet, if the harm suffered falls within the general danger area, there may be liability, *Page 292 provided other requisites of legal causation are present." (Italics supplied).
It cannot be said as a matter of law that the defendant's neglect which created this pond on the land of a third party where children were invited to play and where the defendant knew they played did not create a "general danger area", a situation where injury was reasonably probable. In Bonczek v.Philadelphia, 338 Pa. 484, 489, 13 A.2d 414, 416, we held in an opinion by Mr. Justice STERN that ". . . The city might not have been able to anticipate the exact nature of a likely accident or the extent of the harm which might be occasioned, but it could readily have foreseen the probability of the children playing on or around it and of injury resulting to them. At least the jury was justified in so finding, and the position of the city is all the more indefensible because the condition of disrepair was such that the bench was practically useless as a seat, and therefore its presence in the park served no real purpose." In Mars v. Meadville Telephone Co.,344 Pa. 29, 31, 23 A.2d 856, we said: "The rule is thus stated in Cooley on Torts (1st Ed. p. 70; 4th ed., sec. 50): 'If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent.' "
The Restatement of the Law of Torts, Vol. 2, sec. 386, p. 1033, enunciates this principle: "Any person, except the possessor of land or a member of his household or a licensee acting on his behalf, who creates or maintains upon the land a structure or other artificial condition which he should realize as involving an unreasonable risk of death or serious bodily harm to others whom he should recognize as likely to be upon the land, is subject to liability for bodily harm thereby caused to them, irrespective of whether they are lawfully upon the land, by *Page 293 the consent of the possessor or otherwise, or are trespassers as between themselves and the possessor." The phrase "or other artificial condition" clearly includes a deep body of water artificially created through neglect and which in winter freezes.
That ponds are, both in summer and in winter, attractive to children is as well known as any fact in human experience. That ponds freeze in cold weather and that children unapprehensive of danger often venture upon ice when it is too weak to bear their weight is attested by the annual newspaper reports of the drowning of hundreds of such children. That a pond which serves no useful purpose of any kind and which in fact constitutes a trespass upon another's land, as this pond did, should be eliminated by the party responsible for its creation and maintenance, particularly when that pond is in a neighborhood where there are young children, is a truth so obvious as to be self-evident. "The true-basis" of the modern rule now accepted in this jurisdiction, and generally, as to "the duty" of the possessor of a dangerous instrumentality which is attractive to children to do whatever is reasonably necessary to safeguard such children against injury from that instrumentality is, as we said (p. 592) in Thompson et al. v. Reading Co., supra, "the value of child life to the community" (quoting "Pennsylvania Annotations to the Restatement of the Law of Torts" (1938), p. 177, sec. 339). We added (from the same quotation): "The danger arises out of the likelihood of child trespassing. . ." To hold as legally responsible in damages the defendant who created and maintained this dangerous and totally useless pond of water, to which these children were naturally attracted with such fatal consequences, is obviously to the advantage of society, for it tends to protect human life, and as CARDOZO well said: "It is true, I think, today in every department of the law the social value of a rule has become a test of growing power and importance". *Page 294 CARDOZO: "The Nature of the Judicial Process", p. 73.
The court below properly said "The pool which produced the drowning was not, at the site of the accident, upon the property of the defendant but was cast upon the property of another, due to the defendant's negligence." The court with equal propriety could have added that these children were express invitees of the owner1 of "the place". We think this case is clearly within the rule set forth in the Restatement of the Law of Torts, Sec. 386, supra.
The cases cited by the majority in support of its opinion that this court shall hold as a matter of law that there was a failure to prove the existence of causal relation between the defendant's negligence in failing to keep open the culvert and backing the water upon the lands of others and the drowning, because the drowning could not have been reasonably foreseen are inapposite here because in those cases the injurious results were brought about by intervening agencies, and they and not the negligence complained of were the "proximate cause". Even where there were intervening agencies, we have not always held that they were the "proximate cause". In Mautino v.Piercedale Supply Co., 338 Pa. 435, 13 A.2d 51, we said, in an opinion by Mr. Justice PATTERSON, "Intervening human action, whether innocent or negligent, is not a superseding cause of harm, which an actor's conduct is a substantial factor in bringing about, if such action ought to have been foreseen." InHendricks v. Pyramid Motor Freight Corp., 328 Pa. 570,195 A. 907, Mr. Justice LINN said: "The answer to this inquiry depends on whether the [intervening] conduct was so extraordinary as not to have *Page 295 been reasonably foreseeable, or whether it was reasonably to be anticipated."
In Nelson v. Duquesne Light Co., 338 Pa. 37, 12 A.2d 299, this court said: "The court would not have been justified in determining as a matter of law that the city was not negligent and the negligence of Messinger was the sole proximate cause of the accident. As to proximate cause, section 447 of Restatement of Torts, says: 'The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or (b) . . . or (c) the intervening act is a normal response to a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent.' This comment is added, (p. 1198): 'e. The words "extraordinarily negligent" denote the fact that men of ordinary experience and reasonable judgment, looking at the matter after the event and taking into account the prevalence of that "occasional negligence, which is one of the incidents of human life," would not regard it as extraordinary that the third person's intervening act should have been done in the negligent manner in which it was done.' Viewing Messinger as the 'third person' and the City of Pittsburgh as the 'actor' it cannot be held asa matter of law that the 'actor' should not have realized when it permitted the pole to be placed in the line of traffic thata motorist might crash into it, nor can it be said that the motorist's conduct was so 'extraordinarily negligent' that the city could not have foreseen it when it permitted the pole to be placed and to remain in the street."
The rule enunciated by us in these decisions and others, is applicable where the defendant has foreseeably increased the chance of harm through another force, and the rule is unquestionably sound and accepted generally *Page 296 by the courts. See Carpenter on "Proximate Cause". 14 So. Calif. Law Rev. 115-153.
It is a well established rule that when an instrumentality has a recognizable potentiality for harm to human beings, he who controls that instrumentality must resort to every reasonable measure to eliminate or reduce that potentiality or respond in damages to anyone injured by it, if the injured person is without fault. That a pond covered with ice has a potentiality for harm to human beings, and especially to children, is a fact established by human experience. That the defendant "controlled" this pond is a fact in this case for it was defendant's failure to keep the culvert open which created the pond. That the defendant could have eliminated the pond by simply clearing the rubbish from the culvert was proven by the fact that after the drowning of these children it did so. By the defendant's own witnesses it was shown that it required only eight hours' work by three men to drain this pond and thereby abate this nuisance. This was accomplished by the simple expedient of opening the culvert, thus enabling it to perform the functions which it was designed to perform. This pond which was a nuisance was at all times the creature of this defendant and subject to its complete control. When the defendant acted with due care this pond, which served no useful purpose and which unlawfully worked injury to others, ceased to be a menace. Justice MITCHELL, speaking for this Court inCollins v. Chartiers V. Gas Co., 131 Pa. 143, 159, 18 A. 1012, said: "On the question of negligence knowledge is always important, and may be conclusive. Hence the practical inquiry is, first, whether the damage was necessary and unavoidable; secondly, if not, was it sufficiently obvious to have been foreseen, and also preventable by reasonable care and expenditure?" 45 C. J. at p. 657 says in respect to the duty to provide against an injury to another or to his property which might reasonably be foreseen: "It is not necessary, in order to impose this duty, *Page 297 that injury should be inevitable, that the danger thereof should be great, or even that the chances of injury should exceed the chances of absence of injury; but it is sufficient that injury is likely or reasonably probable", citing cases. InMacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, Judge CARDOZO said: "Because the danger is to be foreseen, there is a duty to avoid the injury. . . . The presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law."
In cases similar to the case at bar the Courts of other jurisdictions2 have generally held that the resulting damage fell within the general threat of harm created by the defendant's negligence, and the latter's negligence was the legal and proximate cause thereof.
In Daroren v. Kansas City, 273 S.W. 401 (Kan.), the action was for the death of two twin boys, 6 years and seven months old by drowning in a pond, which was created upon private property by the city constructing a high fill for a street. After the pond was created it remained for 19 years preceding the drowning of the boys. The city had notice of the common practice of children in the neighborhood playing upon and about the pond. While playing on the ice, the ice gave way and the boys were drowned. The Supreme Court of Missouri held that "The legal obligation rests upon all who create *Page 298 or allow such dangerous conditions, to use reasonable precautions to see that no unnecessary injury shall flow therefrom to others, and if that duty is violated and injury results, the guilty party will be held liable in damages." In the City of Elwood v. Addison, 59 N.E. 47 (Ind.), the complaint alleged that the death of the plaintiff's child, 7 years old, was caused by the negligence of the city in constructing a culvert in such a manner that it was easily obstructed, and that the water in which the child was drowned was thus accumulated at the side of the street. Children would stop there and throw sticks into the water. The child, which was drowned, stopped and threw some sticks in and in some manner slipped from the edge of the sidewalk into the water and lost his life. The court there held: ". . . the theory of the pleading, so far as the appellant's negligence is concerned, is the maintenance of the culvert in a condition which caused a large and dangerous pool of water to form in close proximity to the street and sidewalk. The immediate cause of the death was the pool of water near the street and sidewalk, but this was necessarily incident to the city's wrongful act in maintaining an insufficient culvert to carry away the water. The result that did happen would not have happened had there been a sufficient culvert. The maintenance of the insufficient culvert was the proximate, although not the immediate cause of the death. We fail to see upon what principle a wrongdoer may be permitted to take advantage of his own wrong by stating that the injury resulted from a more immediate cause, when this immediate cause was put in operation by his own wrongful act. . ." In City of Altus v. Milliken, 98 Oklahoma 1, the city assumed the duty of constructing a spillway to prevent the creation of a pond. The city failed to construct the spillway and a pond was created, which had a considerable shallow area, but contained a deep and dangerous hole. The boy was wading in the pool and stepped into this hole and was drowned. The court held that ". . . If this had been *Page 299 done [the spillway constructed], and this duty had been discharged, the accident would not have occurred. The proximate cause of the accident was a question of fact for the jury under proper instructions. . ." In City of Omaha v. Richards,49 Neb. 244, 68 N.W. 526, a boy ten years old was drowned when he fell from a wooden sidewalk which was then floating upon a pond of water part of which was in a public street and a part upon private property. The pond was created by the negligence of the city in grading the street but leaving no sufficient outlet for the surface water which accumulated in said drain, except a manhole to drain the water. The court said in sustaining a verdict for the plaintiff: "It was the duty of the city to have constructed the sewer and street in question in such a manner as to provide a proper and adequate outlet for the water that might have been reasonably expected to come down this ravine. In failing to do so, the city authorities were guilty of negligence. That such negligence was the direct and approximate cause of the death . . . is established to a moral certainty."
In Best, Adm. v. District of Columbia, 291 U.S. 411, the facts were that a wharf for unloading sand lay adjacent to a public street from which for want of a proper fence or barrier, its surface was visible and accessible, and children of tender years were attracted to the sand piles and were accustomed to enter and use the wharf as a playground, going in and out at their pleasure, and it was held in an action for the death of a child alleged to have been caused by negligence in maintaining such a place that the owner was under a duty to take reasonable precautions either to prevent such use or to keep the flooring in repair so that children would not be exposed to the danger of falling through the holes. In that case Chief Justice HUGHES, speaking for the Supreme Court, said: "Were the case merely one of an accessible wharf, it could not be said that the District would be subject to liability from the fact, without more, that a child *Page 300 strayed there and fell from the wharf into the water. The duty must find its source in special circumstances in which, by reason of the inducement and of the fact that visits of children to the place would naturally be anticipated, and because of the character of the danger to which they would unwittingly be exposed, reasonable prudence would require that precautions be taken for their protection. Here, . . . the location of the wharf, unfenced, close to the street with the barrier partly down, taken with the use of the wharf for unloading sand, make it a likely place for children to play. Sand-piles close at hand would constitute "a bait" they would inevitably follow. . . . They did follow it and they used the wharf as a playground at their pleasure. As the authorities of the District had reason to anticipate that use, there was a duty to take reasonable precautions either to prevent it or to keep the wharf in such proper state of repair that children would not be exposed to the danger of falling through holes."
In the instant case the water could be seen from the place where the children lawfully were, and "children were in the habit of going to the place", and their visits to the place should not only have been anticipated but were actually known to the defendant. Due regard for human life required the defendant company to abate the continuing trespass for which it was responsible, and which was obviously a place of danger to children and which actually resulted in the death of four children who were lawfully on the premises where they were drowned.
In Thompson et al. v. Reading Co., 343 Pa. 585, 595,23 A.2d 729, we cited with approval what Lord MacNAGHTEN said in Cookev. Midland Great Western Railway 1909, A. C. 229, as follows: "Would not a private individual of common sense and ordinary intelligence, placed in the position in which the company were placed, and possessing the knowledge which must be attributed to them, have seen that there was a likelihood of some injury happening to children resorting to the place and *Page 301 playing with the turntable, and would he not have thought it his plain duty either to put a stop to the practice altogether, or at least to take ordinary precautions to prevent such an accident, as that which occurred?" Substitute the word "pond" for "turntable" in that excerpt and the language applies perfectly to the instant case. The only "ordinary precautions" the instant defendant would have had to take to remove this utterly useless and, as the tragic multiple drowning proved, deadly pond nuisance would have been the expenditure of a few hours labor of a few men to clear out from its culvert the debris which backed up the water which formed the pond in which these four young children lost their lives at innocent play. According to the testimony of the defendant's foreman, it required only the work of three employees for eight hours to clean out the blockading culvert and thus release the dammed up waters of this trespassing pond.
In the case of Altenbach v. Lehigh Valley R. R. Co., 349 Pa. 272, in which we handed down the opinion on April 17, 1944, we upheld a recovery by parents for the accidental drowning of their four year old son in a reservoir built and maintained by a Railroad company for a useful purpose in a neighborhood where there were children. It was shown in that case, as it was in the instant case, that children frequently played about the reservoir. We said in that case: "The danger was evident to the defendant company for it erected a high fence around the entire reservoir, presumably anticipating the exact nature of such an accident as occurred here. The defendant up to this point met its duty to such children. It failed in its duty of ordinary care, however, when it permitted this fence to get into a condition of disrepair such as was shown by the testimony."
If in that case the company had erected no fence at all around its reservoir it would have been no less culpable than it was in erecting a fence that it permitted to fall into disrepair. In the case now before us, the defendant *Page 302 company created and maintained this pond by its negligent act; the pond served no useful purpose; children played around it "practically every day" and the defendant was not only legally chargeable with knowledge of the fact that children played around this pond near its railroad tracks, but the defendant's track-walker whose duty it was to inspect the section of the company's property which included the blocked culvert was in the vicinity of the spot where the drowning took place, two or three times a week for at least a year before the drowning.
That this drowning took place a considerable period after the culvert was allowed to be blocked and the pond created does not decrease the defendant's responsibility in the slightest degree.
The defendant's position which the majority of this court upholds, is stated by it as follows: ". . . could it have been reasonably anticipated that the overflow of the water in this low spot would result after a year and a half or two years in the drowning of these four children by their walking out upon ice too thin to hold them while playing with or chasing a kite." In Schmidt v. Merchants Despatch Trans. Co., 270 N.E. 287, 300; 200 N.E. 824, the New York Court of Appeals said: "Through lack of care a person may set in motion forces which touch the person or property of another only after a long interval of time; and then only through new, fortuitous conditions," citing Ehret v. Village of Scarsdale, 269 N.Y. 198,199 N.E. 56.3 The point of time mentioned in the defendant's expressed position, therefore, does not affect the question whether the defendant's breach of duty upon which the action is brought is the proximate cause of the death of these children "except as it may afford evidence for or against proximity of causation". *Page 303 1 Shear R. (Rev. Ed.) 93, Sec. 34. In other words, proximity of causation is not measured by the calendar.4
The trial of this case was free from error; the real issue was: should this defendant have reasonably anticipated that some child or children playing around this pond created and maintained by its neglect (and it was chargeable with knowledge that young children were so playing) would meet with either serious or fatal injury? We think the jury was fully justified in answering this question in the affirmative. What did happen here could easily have been anticipated; ordinary forethought by the defendant's agents and servants and the expenditure of a trifling sum of money would have prevented the drowning of these four young children. I would affirm the judgment of the court below.
Mr. Justice HUGHES concurs in this dissent.
1 Whether this owner of the land was also guilty of negligence in inviting children to play on or near this dangerous pond is not in issue here. He at any rate had no power to remove this nuisance, as the defendant had.
2 To these cases may be added the following: Linnberg v. City ofRock Island, 136 Ill. App. 495; Kansas City v. Siese,71 Kan. 283, 80 P. 626; Renno v. Seaboard Airline Railway,120 S.C. 7, 112 S.E. 439; Wheeler v. St. Helens, 153 Or. 610, 58 Pac. (2) 501; City of Indianapolis v. Emmelman, 108 Ind. 530,9 N.E. 155; Doyle v. City of Chattanooga, 128 Tenn. 443,161 S.W. 997; Chicago v. Hesing, 83 Ill. 204; Bowman v. Omaha,59 Neb. 84, 80 N.W. 259, reaffirmed 63 Neb. 333.
3 In this case asphyxiation occurred almost one year after defendant's employee laid a pipe drain under street surface, and in so doing damaged the gas main which was incased in the drain.
4 In an article in 25 Harvard Law Review 103, 106-7, on "Legal Cause in Actions of Tort", Jeremiah Smith says: "It is a mistake to suppose that contiguity in space or nearness in time are legal tests of the existence of casual relation. . . . Proximate cause as a term to indicate the relation of legal cause and effect is a misnomer."