dissenting:
I am unable to agree with the majority that the trial judge’s charge was not prejudicial error.
To be sure, the charge contained individually accurate statements of law on the duty of a possessor of land to trespassing children. Thus, it is the law that a child of seven may be held to understand and appreciate the force of gravity, and therefore the danger of falling from an elevated structure, McHugh v. Reading Co., 346 Pa. 266, 30 A.2d *278122 (1974), and it is also the law that where a child disregards a danger, because of immature recklessness or bravado, a possessor of land will not be held responsible for the resultant injuries, McHugh, Prokop v. Becker, 345 Pa. 607, 29 A.2d 23 (1942); DiMarco v. Penna. R.R. Co., 321 Pa. 568, 183 A. 780 (1936); Restatement (Second) of Torts § 339(c). The problem, however, is not with such individual statements of law, but with the charge as a whole. Taken as a whole, the charge amounted to a binding instruction on the issue of Jeffrey’s right to recover. Reduced to its essence, the charge on this issue said: “Members of the jury, there are certain principles of law applicable to cases involving trespassers who are children. One principle is that young children are held to know that if they slip or step from an elevated structure, they will fall and be hurt. Another principle is that children who realize this danger but disregard it out of a spirit of bravado or recklessness cannot recover against the possessor of the elevated structure from which they fell.” I have very little doubt that upon hearing the charge thus presented, the members of the jury thought that they were to accept as given that Jeffrey fell into the category of a child who out of a spirit of bravado or recklessness had disregarded a danger he should have known about, and, therefore, that he was not entitled to recover.
What the trial judge should have done was to instruct the jurors to proceed in two steps, the first step being to find the facts, the second step being to apply the principles of law appropriate to those facts. Specifically: The judge should have instructed the jurors that they should first decide whether as a matter of fact Jeffrey did know about the danger of falling, and if he did, whether he had acted out of a spirit of bravado or recklessness. Then the judge should have instructed the jurors on what principles of law they should apply, carefully emphasizing that different principles should be applied, depending upon how they had found the facts.
I recognize that after setting forth the principles of law applicable to children who act out of a spirit of bravado or recklessness, the trial judge added:
*279So, if that applies, Members of the jury you consider this an elevated structure, because there was testimony that the landing was five and a half feet off the ground, you may apply it, if you believe it appropriate to this case. (Emphasis added, R.10a)
It may be that the trial judge by these remarks intended to convey to the jurors the idea that they should proceed in two steps, and apply the law as given to them only if they first found the prerequisite recklessness or bravado. It is most unlikely, however, that the jurors so understood the judge. What does seem likely is that they understood him to mean that if they found appellee’s stairway to be the type of elevated structure referred to earlier in the charge, they were expected to apply the law as given and deny Jeffrey any recovery.
Nor is the charge saved because it was taken from McHugh v. Reading Co., supra. There, a six year old girl described in the record as “awfully bright” climbed a stone wall 24 feet high in order to seat herself on what neighborhood children called “the king’s throne.” Upon losing her footing, the child fell to her death. The Court found that a non suit was proper because the jury would have to find that the child had disregarded the danger of falling from the wall, a risk she understood. This finding was required, for the danger of falling from the stone wall was not concealed but rather was obvious to the child. In the present case, however, it is by no means certain that the danger of falling from the one part of appellee’s stairway not protected by railings was obvious to Jeffrey. Whether it was obvious was an issue of fact on which there might be dispute. The jurors should therefore have been instructed that it was their duty to resolve the issue.
By excerpting a portion of an opinion in a case so factually and procedurally different, the trial judge in my opinion misled the jurors. Where a charge is generally accurate, but misleads the jurors on a critical issue, a new trial should be granted. Hamil v. Bashline, 481 Pa. 256, 275, 392 A.2d 1280, *2801289 (1978). See also Leopold v. Davies, 246 Pa.Super. 176, 369 A.2d 868 (1977).
I should reverse and remand for a new trial.