Saar v. American Glass Specialty Co.

Opinion by Porter, J., Katharine Saar, a child about six years of age, was severely burned when her clothing ignited from a fire which had been kindled by the employees of the defendant company, upon the premises of said company, for the purpose of burning waste paper and rubbish from the office and glass factory. The fire had been burning for some time when the plaintiff wandered upon the premises of the defendant company and approached the fire. No witness saw exactly how the accident had its origin, and it is impossible to say whether her clothing first caught fire and she then fell at the edge of the burning rubbish, or first fell into the edge of the fire [288] and thus caused her clothing to be ignited. When first seen by any witness she was lying in the edge of the burning rubbish and her clothing was then burning. This action was brought by the mother of the child, to recover damages in her own right and in behalf of the child. The jury found' in favor of the defendant as against the mother and her right to recover is not involved in this appeal. There was a verdict in favor of the child, but the court subsequently entered judgment in favor of the defendant non obstante veredicto, which action is here assigned for error. The opinion of the learned judge of the court below in entering judgment non obstante veredicto in favor of the defendant, which will appear in the report of this case, fully states the facts and so satisfactorily sustains the conclusion reached that we do not deem it necessary to discuss at length the question presented. The defendant company operated a glass factory and had an office upon the premises and it was its custom to burn the waste paper and other rubbish from the office and factory upon the ground at the rear of the factory. The verdict of the jury in this case establishes that the fire upon the day in question was upon the private property of the defendant company. There was no public highway within several hundred feet of the point where the fire was burning, although there was a few feet away, upon the private property of an adjoining owner, a path which was used by the employees of certain other manufacturing companies in going to and from their work. There was in this case no evidence from which a jury should have been permitted to find that the defendant company had done anything from which an invitation to others or to the public to use this property could be inferred, or that the property had been used as a public playground, or common. The injury to this child was most unfortunate and is to be sincerely regretted, but she was where she had no right to be and, under the law, she is not entitled to recover [289] damages for her injuries from the defendant company. This case is ruled by Thompson v. B. & O. Railroad Co., 218 Pa. 444. The principles recognized in that case, and which are in the present case controlling were not departed from or qualified in the subsequent decisions in Henderson v. Refining Company, 219 Pa. 384, and Walsh v. Railways Company, 221 Pa. 463, which are relied upon by the appellant. What was decided in the later cases was that, under the evidence in those cases, the parties injured were not trespassers and were rightfully upon the premises where they were injured, as we endeavored to show in Rumovicz v. Scranton Electric Co., 44 Pa. Superior Ct. 582. The decision in Thompson v. B. & O. R. R. Co., 218 Pa. 444, has not been overruled, and we must follow it. The judgment is affirmed.