Yania v. Bigan
The Supreme Court of Pennsylvania , 1959
155 A.2d 343 (1959)
Yania, Appellant,
v.
Bigan.
The Supreme Court of Pennsylvania
Argued October 7, 1959
November 9, 1959
PRIOR HISTORY:
[***1]
Appeal, No. 183, March T., 1959, from order of Court of Common Pleas of
Somerset County, No. 1101 Continuance Docket 1958, in case of Anna Yania,
administratrix of the estate of Joseph Yania, deceased et al. v. John E. Bigan.
Order affirmed.
Trespass for wrongful death and survival action.
Defendant's preliminary objections sustained and complaint dismissed, order by
LANSBERRY, P.J. Plaintiff appealed.
DISPOSITION:
Order affirmed.
COUNSEL:
Archibald M. Matthews, for appellant.
Taylor B. Coffroth, for appellee.
JUDGES: Before JONES, C.J., BELL, JONES, COHEN, BOK and MCBRIDE, JJ.
OPINIONBY: JONES
OPINION:
[*317]
[**344] OPINION BY MR. JUSTICE BENJAMIN R. JONES
A bizarre and most unusual circumstance provides the background of this appeal.
[*318] On September 25, 1957 John E. Bigan was engaged in a
coal
strip-mining operation in Shade Township, Somerset County. On the property being stripped
were large cuts or trenches created by Bigan when he removed the earthen
overburden for the purpose of removing the
coal underneath. One cut contained
water 8 to 10
feet in depth with side walls or
embankments 16 to 18
feet in height; at this cut Bigan had installed a
pump to
[***2] remove the
water.
At approximately 4 p.m. on that date, Joseph F. Yania, the operator of another
coal
strip-mining operation, and one Boyd M. Ross went upon Bigan's property for the purpose of
discussing a business
matter with Bigan, and, while there, were asked by Bigan to aid him in
starting the
pump. Ross and Bigan entered the cut and stood at the point where the
pump was located. Yania stood at the top of one of the cut's side walls and then
jumped from the side wall - a height of 16 to 18
feet - into the
water and was drowned.
Yania's widow, in her own right and on behalf of her three children, instituted
wrongful death and survival actions against Bigan contending Bigan was
responsible for Yania's death. Preliminary objections, in the nature of
demurrers, to the complaint were filed on behalf of Bigan. The court below sustained the
preliminary objections; from the entry of that order this appeal was taken.
Since Bigan has chosen to file preliminary objections, in the nature of
demurrers, every material and relevant fact well pleaded in the complaint and every
inference fairly
deducible therefrom are to be taken as true:
Commonwealth v. Musser Forests, Inc., 394
[***3] Pa. 205, 209, 146 A.2d 714;
Byers v. Ward, 368 Pa. 416, 420, 84 A.2d 307.
The complaint avers negligence in the following manner: (1)
"The death by drowning of ... [Yania]
[*319] was caused entirely by the acts of [Bigan] ... in
urging,
enticing
taunting and
inveigling [Yania] to
jump into the
water, which [Bigan] knew or ought to have known was of a depth of 8 to 10
feet and dangerous to the life of anyone who would
jump therein" (Emphasis
supplied); (2) ... [Bigan] violated his obligations to a business invitee in not having
his premises
reasonably safe, and not warning his business invitee of a
dangerous condition and to the contrary urged, induced and
inveigled [Yania] into a dangerous position and a dangerous act, whereby [Yania] came to
his death"; (3)
"After [Yania] was in the
water, a highly
dangerous position, having been induced and
inveigled therein by [Bigan], [Bigan] failed and neglected to take reasonable steps and
action to protect or assist [Yania], or extradite [Yania] from the dangerous
position in which [Bigan] had placed him". Summarized,
[**345] Bigan stands charged with three-fold negligence: (1) by urging,
enticing,
[***4]
taunting and
inveigling Yania to
jump into the
water; (2) by failing to warn Yania of a
dangerous condition on the land, i.e., the cut wherein lay 8 to 10
feet of
water; (3) by failing to go to Yania's
rescue after he had
jumped into the
water. n1
n1 So far as the record is concerned we must treat the 33 year old Yania as in
full possession of his
mental faculties at the time he
jumped.
The Wrongful Death Act (Act of April 15, 1851, P.L. 669,
§ 19, 12 PS
§ 1601) and the Survival Act (Act of April
18, 1949, P.L. 512, art. VI,
§ 603, 20 PS
§ 320.603)
"... really confer no more than rights to recover damages growing out of a
single cause of action, namely,
the negligence of the defendant, which caused the damages suffered." (Emphasis
supplied):
Fisher v. Hill, 368 Pa. 53, 58, 81 A.2d 860. While the law presumes that Yania was not negligent, such presumption
[*320] affords no basis for an inference that Bigan was negligent (
Wenhold v. O'Dea, 338 Pa. 33, 35, 12 A.2d 115). Our inquiry must be to ascertain whether the well-pleaded facts in the
complaint, assumedly true, would, if shown, suffice to prove negligent conduct
on the part of Bigan.
Appellant initially
[***5] contends that Yania's descent from the high
embankment into the
water and the resulting death were caused
"entirely" by the spoken words and
blandishments of Bigan delivered at a distance from Yania. The complaint does
not allege that Yania slipped or that he was pushed or that Bigan made any
physical impact upon Yania. On the contrary, the only inference
deducible from the facts alleged in the complaint is that Bigan, by the employment of
cajolery and inveiglement, caused such a
mental impact on Yania that the latter was deprived of his volition and freedom of
choice and placed under a compulsion to
jump into the
water. Had Yania been a child of tender years or a person mentally deficient then
it is conceivable that
taunting and enticement could constitute
actionable negligence if it resulted in harm. However to contend that such conduct directed to an
adult in
full possession of all his
mental faculties constitutes
actionable negligence is not only without precedent but completely without merit.
McGrew v. Stone, 53 Pa. 436,
Rugart v. Keebler-Weyl Baking Co., 277 Pa. 408, 121 A. 198, and
Bisson v. John B. Kelly, Inc., 314 Pa. 99, 170 A. 139, relied upon by
[***6] appellant, are clearly inapposite.
Appellant next urges that Bigan, as the
possessor of the land, violated a
duty owed to Yania in that his land contained a
dangerous condition, i.e., the waterfilled cut or trench, and he failed to warn Yania of such
condition. Yania was a business visitor in that he entered upon the land for a
common business purpose
[*321] for the mutual benefit of Bigan and himself (Restatements, Torts,
§ 332;
Parsons et vir. v. Drake et al., 347 Pa. 247, 250, 32 A.2d 27). As
possessor of the land, Bigan would become subject to liability to Yania for any physical
harm caused by any artificial or natural condition upon the land (1) if,
but only if, Bigan knew or could have discovered the condition which, if known
to him he should have realized involved an unreasonable risk of harm to Yania,
(2) if Bigan had no reason to believe Yania would discover the condition or
realize the risk of harm and (3) if he invited or permitted Yania to enter upon
the land without exercising reasonable care to make the condition
reasonably safe or give adequate warning to enable him to avoid the harm.
Schon, Admx. v. Scranton-Springbrook Water Service Co., 381 Pa.
[***7] 148, 152, 112 A.2d 89, and cases therein cited;
Engle v. Reider, 366 Pa. 411, 77 a.2d 621;
Johnson v. Rulon, 363 Pa. 585, 70 A.2d 325. The inapplicability of this rule of liability to the instant facts is readily
apparent.
The
only condition on Bigan's land which could possibly have
contributed in any manner to Yania's death was the
water-filled
[**346] cut with its high
embankment. Of this condition there was neither concealment nor failure to warn, but, on
the contrary, the complaint specifically avers that Bigan not only requested
Yania and Boyd to assist him in
starting the
pump to remove the
water from the cut but
"led" them to the cut itself. If this cut possessed any potentiality of danger,
such a condition was as obvious and apparent to Yania as to Bigan, both
coal strip-mine operators. Under the circumstances herein depicted Bigan could not
be held liable in this respect.
Lastly, it is urged that Bigan failed to take the necessary steps to
rescue Yania from the
water. The mere fact that Bigan saw Yania in a position of
peril
[*322] in the
water imposed upon him no legal, although a moral, obligation or
duty to go to his
rescue unless Bigan was
[***8] legally responsible, in whole or in part, for placing Yania in the
perilous position: Restatement, Torts,
§ 314. Cf: Restatement, Torts,
§ 322. The language of this Court in
Brown v. French, 104 Pa. 604, 607, 608, is apt:
"If it appeared that the
deceased, by his own carelessness,
contributed in any degree to the accident which caused the loss of his life, the
defendants ought not to have been held to answer for the consequences resulting
from that accident. ... He voluntarily placed himself in the way of danger,
and his death was the result of his own act. ... That his undertaking was an
exceedingly reckless and dangerous one, the event proves, but there was no one
to blame for it but himself. He had the right to try the
experiment, obviously dangerous as it was, but then also upon him rested the consequences
of that
experiment, and upon no one else; he may have been, and probably was, ignorant of the risk
which he was taking upon himself, or knowing it, and trusting to his own skill,
he may have regarded it as easily superable. But in either
case, the result of his ignorance, or of his mistake, must rest with himself -
and cannot be charged to the defendants". The complaint
[***9] does not aver any facts which impose upon Bigan
legal responsibility for placing Yania in the dangerous position in the
water and, absent such
legal responsibility, the law imposes on Bigan no
duty of
rescue.
Recognizing that the
deceased Yania is entitled to the benefit of the presumption that he was exercising due
care and extending to appellant the benefit of every well pleaded fact in this
complaint and the fair inferences arising therefrom, yet we can reach but one
conclusion: that Yania, a reasonable and prudent
adult in
full possession of all his
mental faculties, undertook
[*323] to perform an act which he knew or should have known was attended with more or
less
peril and it was the performance of that act and not any conduct upon Bigan's part
which caused his unfortunate death.
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