McGRELLIS ET UX. v. WELSBACH ST. L. CO., 306 Pa. 58 (1932)

158 A. 573

McGrellis et ux., Appellants, v. Welsbach Street Lighting Co. of America.

Supreme Court of Pennsylvania.December 3, 1931.
January 5, 1932.

Negligence — Explosion of gasoline can — Evidence — Province of court and jury — Infant.

In an action to recover for the death of a boy caused by the explosion of a can of gasoline found and ignited by the boy and his companions on a street lot, a nonsuit is properly entered where it appears that, although the can was the property of the defendant, there is no evidence as to how it came on the lot where the accident occurred.

Argued December 3, 1931.

Before FRAZER, C. J., WALLING, SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.

Appeal, No. 322, Jan. T., 1931, by plaintiffs, from order of C. P. No. 4, Phila. Co., June T., 1929, No. 301, refusing to take off nonsuit, in case of William J. McGrellis et ux. v. Welsbach Street Lighting Co. of America. Affirmed.

Trespass for death of minor child. Before FINLETTER, P. J.

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The opinion of the Supreme Court states the facts.

Nonsuit; refusal to take it off. Plaintiffs appealed.

Error assigned, inter alia, was refusal to take off nonsuit, referring to the record.

S. Joseph Stratton, with him Saul C. Waldbaum, for appellant.

Robert I. Brown, Charles B. Downs and William Findlay Brown, for appellee, were not heard.

PER CURIAM, January 5, 1932:

Plaintiffs appeal from refusal of the court below to take off a nonsuit entered in this action to recover damages for the death of plaintiffs’ minor son, who at the time of the accident was eight years old.

The child lost its life as the result of an explosion of gasoline contained in one of two cans which he and two other boys found on a vacant lot on Paschall Avenue between 52d and 54th Streets in the City of Philadelphia. One of these cans was partly filled with the liquid, which they ignited. The cans were identified as belonging to defendant. How they came to be on the vacant lot where the children played, the testimony failed to show. One of plaintiffs’ witnesses, a lamp lighter, however, testified that three of the cans of gasoline for his use had, during the night previous to the accident, been stolen from the light area in front of a cellar window in a yard at 56th Street and Woodland Avenue, three blocks distant from the place of the accident, where he was accustomed to keep containers of this character. Two of the stolen cans were those found by the boys at the scene of the accident on the vacant lot, late in the afternoon of the day following their disappearance from the Woodland Avenue premises. We find nothing in the evidence tending in the slightest degree to connect defendant with the presence of the cans where the children

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found them, or showing liability on its part. To submit the case to the jury on evidence of the indefinite character here disclosed in the record, would result in permitting a verdict to be based on a fact found without a scintilla of evidence to support the finding. See Cain v. Booth Flinn, Ltd., 294 Pa. 334, and cases there cited. The court below rightly refused to submit the case to the jury.

The order of the court below refusing to take off the nonsuit is affirmed.