Appeal, No. 161, Jan. T., 1944, from judgment of C. P., Lackawanna Co., Sept. T., 1943, No. 1254, in case of Pearl Simon, Administratrix, v. The Hudson Coal Company. Judgment affirmed.

Trespass for wrongful death.

The facts are stated in the opinion by EAGEN, J., of the court below, as follows:

Plaintiff in this trespass action seeks to recover damages for the death of a minor child. We are here concerned with an affidavit of defense raising questions of law. The allegations of the statement of claim must be taken as true and the question for decision is, "Do these facts state a cause of action?"

Plaintiff was in lawful possession of a property through which ran a ditch or watercourse. While this ditch normally was dry, the defendant did at irregular intervals discharge mine water into it from a pumping station 350 feet above plaintiff's property. On February 28th, 1943, the defendant without notice or warning caused water to be discharged from its pumping station into the ditch in such volume as to increase the depth of the water approximately three to six feet. Plaintiff's son three and one-half years of age while playing in the yard of plaintiff's property near this watercourse fell into the water and was drowned.

Plaintiff contends defendant was negligent in discharging such a volume of water into the stream without giving notice to children, whom the defendant knew or should have known might be playing in or near the watercourse.

While a summary judgment should be entered only in a very clear case, we believe this is such and that no cause of action is set forth.

There can be no legal doubt of defendant's legal right to flow water into the stream so long as the banks were not overflowed. In Miller v. Laubach, 47 Pa. 154, at p. 155, the court said:

"No doubt the owner of land through which a stream flows may increase the volume of water by draining into it without any liability to damages by a lower owner. He must abide the contingency of increase or diminution of the flow in the channel of the stream, because the upper owner has the right to all the advantages of drainage or irrigation, reasonably used, as the stream may give him."

See to the same effect Meixell v. Morgan, 149 Pa. 415, and the Pennsylvania Coal Company v. Sanderson et ux., 113 Pa. 126. We cannot see how in exercising this right any duty evolved upon the defendant to either go upon the land of the plaintiff and erect barricades along the creek bed or to give warning of the discharge of the water, particularly in view of the fact, that the boy fell into the water after its level had been raised. In this latter connection, it is important to note that plaintiff does not allege that the deceased child was drowned by a sudden and overwhelming onrush of water while playing in the stream or in and about its channel, but that defendant, having increased the depth of the stream, the child "fell into the said ditch or watercourse" while "playing in the yard of the premises occupied by the plaintiff and adjacent" thereto. The incident thus described is one that could have occurred at hundreds of open and unprotected rivers and streams which course through Lackawanna County and along which children of every age have and will continue to play.

The plaintiff rests her action upon Section 371 of the Torts Restatement, which is as follows:

"A possessor of land is subject to liability for bodily harm to others outside the land caused by an activity carried on by him thereon which he realizes or should realize as involving an unreasonable risk of bodily harm to them under the same conditions as though the activity were carried on at a neutral place."

It is pointed out that this principle of law was recently sustained and applied in Hudson, Admrx., v. Grace et al., 348 Pa. 175. We feel, however, that the present situation differs materially from the facts in that case. This is not a situation where the child was playing in or near the stream bed and was drowned by a sudden onrush of water; nor is it a case where the deceased was attracted to the stream by the water being discharged therein. The boy fell into the water after its depth had been increased by the pumping operation. The discharge of the water, therefore, did not in our opinion contribute directly or indirectly to the boy's unfortunate death. Nor would any warning that the defendant might have given changed the boy's conduct from playing near the stream and falling therein. Speaking of proximate cause the Restatement in Section 430 says:

"In order that a negligent actor shall be liable for another's bodily harm, it is necessary not only that the actor's conduct be negligent toward the other in the particulars stated in Sec. 281, clause (b), and comment thereon, but also that the negligence of the actor be a legal cause of the other's harm."

The actor's negligent conduct, says the author, is a "legal cause" of harm to another "if his conduct is a substantial factor in bringing about the harm" (Id. sec. 431, (a)). But "the actor's negligent conduct is not a substantial factor in bringing about harm to another if it (the harm) would have been sustained even if the actor had not been negligent" (Id. sec. 432(1)).

Here the "harm would have been sustained" even if notice or warning was given, as already indicated, and thus the failure or omission to give such notice was not a "substantial factor in bringing about the harm." The accident was caused, not by decedent's ignorance of the presence of the water, and, therefore, not because of any lack of notice or warning, but because of the fall which occurred while he was playing in plaintiff's yard.

At the argument plaintiff's counsel said, "We do not rest our case upon the 'so-called playground rule' or 'attractive nuisance doctrine'." The facts are not within the line of cases wherein recovery was allowed on either of these theories. The land where this incident occurred was occupied not by the defendant but by the plaintiff and her family. Then again, the stream was not inherently dangerous. The Superior Court said in Dornick v. Wierton Coal Co., 109 Pa. Super. 400, at page 404:

"Nor in our view, does this case come within the attractive nuisance doctrine, as the reservoir was not inherently dangerous. It was not an object or instrumentality, by which, if left unguarded, a boy, with his natural curiosity to investigate, may, by playing with it, setting it in motion, or running against it, sustain an accident. Of course, a boy could and did fall into it, but such an accident may occur in any pond or stream."

See also Murdock v. Pennsylvania R. R. Co., 150 Pa. Super. 156, at p. 169, where the court pointed out:

"The great weight of authority in other states is in accord with the Pennsylvania cases which deny recovery by the parents of children drowning in natural or artificial ponds. The governing principle is stated in 20 R. C. L., Neg. 85 as follows: ' Ponds, pools, lakes, streams, and other waters embody perils that are deemed to be obvious to children of the tenderest years; as a general proposition no liability attaches to the proprietor by reason of death resulting therefrom to children who have come upon the land to bathe, skate or play . . . Although a property owner may know of the habit of children to visit waters upon his premises, he is as a rule under no obligation to erect barriers or to take other measures to prevent their being injured thereby.' "

Wherefore, we conclude no cause of action is pleaded because of the facts set forth do not describe any act of negligence on the part of the defendant which was the proximate cause of the death.

Plaintiff appealed.