GAMBINO ET AL. v. CURTIS PUB. CO., 311 Pa. 587 (1933)

167 A. 330

Gambino et al., Appellants, v. Curtis Publishing Company.

Supreme Court of Pennsylvania.April 20, 1933.
May 22, 1933.

Negligence — Employee pursuing minor on premises of employer — Incline near platform — Deflecting direction of minor — Evidence — Proximate cause.

In an action by plaintiffs to recover for injury sustained by a minor plaintiff, a boy sixteen years old, in sliding down a steep incline adjacent to a loading platform in defendant’s premises, evidence that the minor fled upon the approach of an employee of defendant, who, as the boy started down the incline, unsuccessfully endeavored to catch hold of him, does not establish that the accident was caused by the action of defendant’s employee in snatching at the boy’s arm, where there is no evidence that the slight contact of the boy’s arm with the hand of the employee changed his direction or was the proximate cause of the injury.

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Argued April 20, 1933.

Before FRAZER, C. J., SIMPSON, KEPHART, DREW and LINN, JJ.

Appeals, Nos. 208 and 230, Jan. T., 1933, by plaintiffs, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1930, No. 8005, granting nonsuit, in case of Samuel Gambino, by his father and next friend, Calogero Gambino, and Calogero Gambino, in his own right, v. The Curtis Publishing Company. Affirmed.

Trespass for personal injuries. Before PARRY, J.

Nonsuit granted. Motion to take it off refused. Plaintiffs appealed.

Error assigned was refusal to take off nonsuit, quoting record.

Philip Richman, with him James R. Wilson, of Wilson Wilson, for appellants.

Ralph B. Evans, with him Charles E. Kenworthy, for appellees, not heard.

PER CURIAM, May 22, 1933:

Plaintiffs seek to recover from defendant for injury sustained by the minor plaintiff, a boy sixteen years old, in sliding down a steep incline adjacent to a loading platform used for shipping purposes at the rear of and in defendant’s premises on Washington Avenue, Philadelphia. Young Gambino, with two other lads, had ascended the incline leading into the building but remained there only momentarily, due to the approach of one of defendant’s employees. The boys took flight at once and two of them reached the sidewalk safely by sliding down the incline. The minor plaintiff first started to climb down to the loading platform, then decided to follow his companions. As he started down the incline, the approaching employee unsuccessfully endeavored to catch hold of him. When the boy struck the

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bottom, a bone in his foot was broken by coming into contact with a fire plug, located at the property line a foot or two from and to one side of the slope. Plaintiffs sought to show the accident was caused by the action of defendant’s employee “in snatching at the boy’s arm as he slid past” and thus deflecting his course. The trial judge entered a nonsuit, affirmed by the court in banc, which states in its opinion: “We think the trial judge was right, for the only evidence upon which the plaintiff seeks to base liability is that an employee of the defendant snatched at the boy’s arm as he slid past. This will not produce the inference that he was intending to inflict an injury, for his action is quite as consistent with the idea that he was attempting to prevent one. . . . . . There is no evidence that the slight contact of [the boy’s arm] with the hand of the employee changed his direction, and while one of the witnesses said he thought this caused the boy to slide a little faster, this cannot be said to have been the cause of the injury which resulted. We find no basis in the record for a finding that the defendant was negligent.” An examination of the record confirms the correctness of that conclusion.

The judgment is affirmed.