Freund, Stanton and Conlon. The opinion of the court was delivered by Stanton, J.s.c. (temporarily assigned). Conlon, J.c.c. (dissenting).
This is an appeal from the dismissal of a negligence action for personal injuries by the trial court at the close of the case.
The infant plaintiff, aged six years, suffered a fracture of his right leg on October 19, 1951. On that date he was in attendance in the first grade class at Echo Lake public school. Adjoining the school property were grounds of a church which were then being levelled and graded by the defendant for use as an automobile parking area. There was evidence that the school children customarily ran over
and played on the church grounds. At the time of the occurrence one of the defendant's employees was operating a bulldozer in such a way that he created furrows to a depth of three to four feet. The infant plaintiff was outdoors during the afternoon recess and at about 2:30 P.M. was seen by his teacher running with another boy across the school playground toward the church property. Shortly after she was informed that he had been injured. The operator of the bulldozer noticed him lying on the ground about 75 or 80 feet from the school yard. At the time there was another boy standing near him. He was lying at a place that had been dug out and it was three to four feet below the level of the church property between that point and the school yard. He obviously was injured as the result of having fallen or having been pushed from the high ground to the low. It is not contended that there was any contact between him and the bulldozer. The work of grading and levelling the ground had been started in the first part of the previous month. The boy did not testify and there was no evidence other than the above as to the manner in which the accident happened.
The complaint charged that the making of the excavation created an attractive nuisance and that the defendant was under a duty to properly guard it, place warnings, and take such other precautions as were reasonably necessary to protect children who were using the public school grounds and that it failed to perform such duty. The pretrial order raised the issue that the defendant was negligent by reason of its failure to "safeguard a dangerous and hazardous condition, well knowing the proximity of the school yard and the fact that minor children customarily played thereon." The case was tried on the latter theory and the dismissal was based upon the failure to establish any duty of the defendant which was violated or any negligence on the part of the defendant which was the proximate cause of the accident. At the trial the main contention of the plaintiffs was that the defendant should have erected a fence or
barrier around the church property which would have kept the school children off it. From a map in evidence it would appear that the common boundary between the church and the school property was about 188 feet long and that the church property extended approximately 189 feet along Germantown Road on which the school also abutted. There is no evidence from which it could be inferred that the infant plaintiff was an invitee upon the church grounds; at most he was a licensee.
However, plaintiffs predicate liability on the principle found in Restatement of the Law of Torts, sec. 339, as follows:
"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 ...