Kibele v. City of Philadelphia

105 Pa. 41, 1884 Pa. LEXIS 56

• Court: Supreme Court of Pennsylvania
• Decided: January 14, 1884
• Status: Published

Opinion

Mr. Justice Gordon

delivered the opinion of the court, February 18, 1884.

We think the evidence in this case was sufficient to require its submission to the jury. The immediate cause of the injury to the plaintiff was undoubtedly the defective gas pipe, and the material question was whether of this defect the city had either actual or constructive notice. There can be no serious question of its liability for damages to a citizen resulting from its wilful neglect in a particular of this kind. Admitting then that the main was in all respects properly constructed and secured, and this was a question for the jury, yet if the city officials did know, or ought to have known, previously to the time of the explosion, that it was in a defective condition, and failed to have it properly repaired, that would be such a default as woirld fix the liability of the city. But notice or knowledge will be assumed where the circumstances are such that the municipal authorities, by the exercise of proper and reasonable diligence, might have known of the defect which caused the damage complained of. McLaughlin v. The City of Corry, 27 P. F. S., 109; Fritsch v. City of Allegheny, 10 Nor., 226. In the latter case Mr. Justice Mercur, in delivering the opinion of the Court, says: “Negligence is the absence of proper care, caution and diligence; of such care, caution and diligence, as under the circumstances reasonable and ordinary prudence would require to be exercised. It may consist as well in not doing the thing which ought to be done, as in doing that which ought not to be done, when in either ease it has caused the loss and damage to another. Hence, in this case, one question to be determined is, whether the municipality acting through its officials, failed to exercise such care and diligence in not ascertaining the nuisance, and in not removing it prior to the injury sustained by the plaintiff.” In the case under consideration, as in the one cited, the question is, could the city officials by the exercise of a proper diligence, have discovered the defect in the gas main in time to have had it properly repaired before the explosion. Several witnesses, and among them one of the city’s patrolmen, speak of smelling the escaping gas a week or ten days before the accident. Here then was the certain indication of a broken pipe and the need of immediate repairs. It might well be supposed that within the space of a week or ten days, the proper officers ought to have discovered a gas leak which was alike offensive and dangerous -to a whole neighborhood, and it might also be supposed that it was part of the business of a patrolman, on discovery of such aleak, to have informed those officers. All these however were questions for the jury, and to that body this evidence ought to have been submitted.

The question.of contributory negligence was also one for the jury. If the plaintiff knew that illuminating gas was escaping from the main, and also knew that from it an explosion might reasonably be expected, it was his duty to have withdrawn from the premises, or to have taken other precautions for his safety, until the leak could be discovered and stopped. He could not knowingly take upon himself such a risk as this, the risk of an explosion, and for its consequences charge the city. In such case both parties would be chargeable with negligence; both contribute to the accident, hence one could not charge the other with the resulting damages. A good deal has been said in the argument of this case about the defectiveness and untrapped condition of the plaintiff’s sewer, and an endeavor has been made through it to charge him with contributory negligence. But this matter has nothing at all to do with the case. If he had a bad or imperfect branch sewer, he must run the risk of the deleterious effects of sewer gas, for that must be expected in a common sewer, but he had no right to expect that it would become a conduit for illuminating gas ; as well might he expect that it would be made a storehouse for gunpowder. Again, it is urged that the plaintiff ought to have notified the authorities. Undoubtedly lie ought so to have done if he knew that his house was being filled with illuminating gas, and if he also knew the dangerous character of that article. But he was not bound to know that when mixed in certain proportions with the common air it was explosive. As was said in the case of the Oil City Gas Company v. Robinson, 3 Out., 1, such knowledge might be presumed of an expert, or of one whose education would necessarily involve some knowledge of chemistry, but it would be going too far to presume such knowledge of a saloon-keeper. The city, however, as a manufacturer and vendor of gas, was bound to know all about its character, and to take care that, through the default of its officers or servants," the article which it manufactured and sold was the occasion of harm to no one.

The judgment of the Court below is now reversed, and a new venire ordered.