
    Gallagher, Appellant, v. Frederick.
    
      Argued November 27, 1950.
    Before Drew, C. J., Stearne., Jones, Ladner and Ci-iidsey, JJ.
    
      Laurence S. Eldredge, with him I. Sidney Sherwin and Morris J. Winolmr, for appellants.
    
      Darnel J. MeOauley, Jr., for appellees.
    January 2, 1951:
   Opinion by

Mr. Justice Jones,

This action in trespass was brought by the father of the minor plaintiff in the latter’s behalf, as his natural guardian, and in the father’s own right to recover damages for injuries sustained by the minor when he was burned by flames from a bonfire on a lot of ground owned by the defendants, husband and wife. At the close of the plaintiffs’ case, the learned trial judge, on motion of defendants’ counsel, entered a compulsory nonsuit which the court en banc later refused to take off. From the judgments entered for the defendants, the father brought these two appeals in his respective capacities. The basis assigned by the court below for its action was the failure of the plaintiffs to prove negligence on the part of the defendants as the proximate cause of the injury.

The following are the material facts when the evidence and the reasonable inferences are taken in the light most favorable to the plaintiffs. The defendants bought a vacant lot in the center of a city block in the Kensington section of Philadelphia. It was 184 feet by 51 feet, 9 inches, in size, and was situated just around the corner from the defendants’ dwelling and across the street from the plaintiffs’ home. The surrounding area was densely built up with dwellings, factories and mills. The defendants obtained possession of the lot on August 28, 1946, at which time it was being kept in order by some of the parents of the neighborhood in a clean and safe condition so as to afford an open playground for the children of the community. After acquiring the property, the husband defendant put upon it a large amount of charred lumber which he had salvaged from a building in the neighborhood that had been burned, large chunks of broken-up cement flooring from a nearby social club that he was remodeling and several piles of cinders and other refuse. He had in mind improving the lot by erecting thereon a number of garages for the storage of automobiles, the whole project to be enclosed by a cinder block wall. Several of the witnesses referred to the materials on the lot as debris which is not a wholly inapt description judging from the pictures of the locus in quo offered in evidence. However, that the owners intended to use the materials for building purposes is unquestioned.

After tbe defendants’ acquisition of tbe property, tbe children of tbe neighborhood, ranging in ages from approximately three up to fifteen years, continued to come there as a matter of course; they played among tbe debris, dug boles and frequently built fires using bits of tbe charred lumber for tbe purpose. From tbe testimony, tbe jury could have found that fires were made daily; tbe defendants’ knowledge of that condition was constructive as tbe owners and users of tbe lot resident around tbe corner. Complaints bad been made to tbe defendant husband that children were getting hurt on tbe lot but, so far as tbe record discloses, such complaints were confined to tbe physical condition of the materials which tbe defendant husband bad placed upon tbe lot.

About 12:30 o’clock Sunday noon, October 6, 1946, tbe minor plaintiff, then two years and eleven months old, went out of bis home, crossed over tbe street to tbe lot and there joined several other children who were playing on and around a pile of broken concrete at tbe base of which at one end they bad built a small bonfire. Tbe other children, among them a brother of tbe minor plaintiff, were a little older than be, at least two of them being around six years of age. A few minutes later tbe other children moved off a little distance from tbe fire, leaving tbe minor plaintiff on tbe pile of broken concrete. One of tbe children, who was permitted to testify at trial, beard the little boy scream and, looking round, saw him standing on tbe pile with bis clothes aflame. A neighbor, attracted by tbe screams, put out tbe flames and rushed tbe boy to a nearby hospital where bis burns required him to be kept for about a year for treatment. Except for loss of weight and strength and scars from tbe burns, tbe boy was all right at trial according to bis mother. In any event, tbe trial of tbe case did not proceed far enough to call for medical testimony.

On the question of tlie defendants’ liability, the plaintiffs sought to bring tbe ease within the rule set forth in §339 of the Restatement, Torts, which is law in this State. In Bartleson v. Glen Alden Coal Company, 361 Pa. 519, 529, 64 A. 2d 846, Mr. Justice Linn said for this court, — “To the extent that past cases are in conflict with the view of section 339 of the Restatement of the Law of Torts, which we have adopted, they are no longer authority. See Patterson et al. v. Palley Mfg. Co. et al., 360 Pa. 259, 265, 61 A. 2d 861, 864 (1948).” See also Allen v. Silverman, 355 Pa. 471, 474, 50 A. 2d 275; Altenbach v. Lehigh Valley Railroad Gompany, 349 Pa. 272, 275-276, 37 A. 2d 429; and Thompson v. Reading Company, 343 Pa. 585, 590-591, 23 A. 2d 729. The question here is whether the evidence adduced by the plaintiffs at trial brought the case within §339 of the Restatement, Torts. We think not.

§339 provides that “A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.” The appellants contend that the evidence adduced at trial supplies all of the foregoing conditions and, consequently, made out a prima facie case of the defendants’ liability.

The contention, if adopted, would extend tbe rule set forth in §339 of tbe Restatement, Torts, beyond tbe reasonable limits of its intended import. Appellants’ counsel bas not cited us any case that goes as far as be would now bave us go. Tbe artificial condition on an owner’s land on account of wbicb be may be liable for injury to trespassing young children is such as he creates or maintains. That, of course, does not necessarily mean that an owner may not be said to maintain such a condition on bis land wbicb another bas created but wbicb the owner allows to exist. Tbe defendants cannot rightly be thought of as having maintained sporadic fires on their land started by trespassing children to tbe detriment of tbe owners’ goods or property. Nor does tbe fact that tbe lumber had been damaged by fire to some extent before tbe owners brought it upon tbe premises make tbe case any different. §339 embodies tbe modern concept wbicb “limits [an owner’s] unrestricted use of land in tbe interest of safeguarding children from tbe danger of serious injury” (Bartleson v. Glen Alden Coal Company, supra, at p. 527). But, tbe rule was not intended to impose upon an owner of land tbe duty of policing tbe conduct of trespassing young children against dangers of their own creation and not related to or inhering in the artificial conditions which the owner maintains upon bis land. Tbe beneficent purpose of tbe rule will not be subserved by stretching it to tbe breaking point through an overextended application out of a natural sympathy for a lamentable and most unfortunate injury to a child of very tender years.

Tbe appellants also complain of tbe trial judge’s refusal to permit John Gallagher, Jr., tbe minor plaintiff’s brother, to testify because of bis youth. John was slightly under six years old at tbe time of tbe accident and nine at tbe time of trial. However, no exception was taken to tbe court’s ruling in such regard. Consequently, it is not reviewable ■ here: Beal v. Atlantic States Motor Lines, 348 Pa. 503, 504, 35 A. 2d 298. As no offer was made of wbat tbe proposed witness’s testimony would show, we are not informed as to its purpose. But, judging from tbe testimony of another witness for tbe plaintiff, it is likely that John’s testimony would have been only cumulative of particulars which we deem legally insufficient to establish liability on the part of the defendants. It otherwise appears that John had been at the scene of the bonfiré and had moved on to another part of the lot shortly before his brother’s clothing, caught fire. Presumably, the exclusion of the witness did not do the plaintiffs any substantial harm which makes the failure to except to the trial judge’s ruling the less important.

Judgments affirmed.  