Mitchell v. Stewart

40 A. 799, 187 Pa. 217, 1898 Pa. LEXIS 794

• Court: Supreme Court of Pennsylvania
• Decided: July 21, 1898
• Docket: Appeal, No. 147
• Status: Published

Opinion

Opinion by

Mr. Justice Green,

There is but one question in this case, and that is whether the plaintiff was so manifestly guilty of contributory negligence as to make it the duty of the court below to direct a compulsory nonsuit. At the conclusion of the plaintiff’s testimony, upon motion of defendant’s counsel, the court granted a compulsory nonsuit, which, afterwards in an exhaustive and able opinion, they refused to take off.

The plaintiff received his injury by an explosion of gasoline in the cellar of his own leased house. He entered the cellar with a lighted lantern in his hand and the explosion instantly took place. Was this the result of an act of negligence on his part which caused his injury ? The explosion resulted immediately and directly from the presence of the lighted lamp. The plaintiff was the one, only person who brought the lamp in contact with the explosive gas, and was, of course, the sole producing agent of the resulting explosion. Whether his act was culpably negligent depends chiefly upon his prior knowledge of the character and qualities of gasoline, the condition of the apparatus in the cellar, and the probable or possible presence of gas in the cellar. The full detail of the plaintiff’s knowledge and acquaintance with the gasoline plant, its connections with the house, the manner of lighting the house, and the condition and situation of the pipes and apparatus in the cellar are set forth with much clearness and force in the opinion of the court below on the motion to take off the nonsuit, and therefore they do not need much repetition here. Substantially, they amount to this: the hotel had been lighted with gas made from gasoline for about ten years; the generator was placed about a hundred feet from the house and the gas was conducted to the house through pipes which led through the cellar wall about two feet below the floor; there was an air pump in the cellar which required to be wound up every night, as a part of the gas apparatus; the cellar was sixteen by twenty feet, had no windows or outside doors, was dark and contained the air pump and gas pipes and nothing else; the plaintiff had always lived in the vicinity and knew well how the hotel was lighted, and the means for producing the gas for that purpose; while he was preparing to occupy the hotel he was in the cellar several times putting it in shape. The following extracts from the plaintiff’s' testimony will illustrate the extent of his knowledge of the situation: “ Q. How is that house lighted? A. By gasoline. Q. Is the gasoline manufactured there? A. Yes, sir. Q. Where? A. In the tank. The gasoline tank is below the house about, well I suppose, 100 feet from the house as near as I can tell. Q. What other arrangements were connected with it? A. Well, the generator was in the cellar under the kitchen part. . . . Q. What arrangement was there between the place where the gas was manufactured, for conveying the gas from the place of manufacture into the cellar? A. There was a pipe; there was one pipe to bring the air into the tank and another for conveying the gas into the house. Q. What part of the cellar wall did that come in at? A. In at the lower part. Q. Did it run on the floor or on the rafters ? A. That came in the cellar, I suppose two or three feet from the joists. . . . Q. What seemed to be the condition of these pipes, and did you speak to Mr. Stewart of their condition ? A. Yes, sir; the water pipes were all froze through the house and leaking; every pipe almost through the house was leaking, and the gas pipe and weight that forced air through the generator was broken down; it was broken down and the pipes leaked bad; everything looked in bad condition. Q. Did you call Mr. Stewart’s attention to that? A. Yes, sir. Q. What did he say? A. He said he would attend to it and have it fixed.” After saying that a plumber named Pinnard had been there to examine a gas apparatus in the cellar, he described an occurrence on the evening of May 28, which was the evening before the explosion. “We had a birthday party for my father-in-law on the 28tb, Thursday May 28th, that was the first night that we had lighted the gasoline. We had put the gasoline in the tank the Sunday before and that was on Thursday night. Q. How did the gas work? A. Well the gas would raise up and then die down and pretty near go out, and then would raise up again, and just kept on that way. I got afraid there was something wrong, and after supper we turned the light out, and then the next morning we went down to Mr. Stewart’s office, I believe about nine o’clock, and told him the way tbe gas bad acted, and that I was afraid there was something wrong and he said: ‘I will have it fixed, attend to it.’ .... and he told me to go in the office and get a cigar case and I would find a hook of instructions in it, and he said, ‘You get this book and study it and it will teach you how to work this.’ .... I went to the office and got the book of instructions .... and I read it through. .... On Friday evening, tbe 29th, we lit tbe gas all through the house, for I was expecting a big crowd tbe next day from Pittsburg. Q. Wben did you then next try the gas ? A. That evening. Q. Well, sir, bow did it act ? A. Just the same as it bad done before. It burned slowly and kept getting dimmer and dimmer until someone called my attention to it and said there was something tbe matter, and I told him I bad seen Mr. Stewart and lie said it was air in the pipes. I went over tbe bouse about 11 o’clock .... and I had a lantern, and started to go into tbe cellar to wind tbe generator up, for I supposed it bad run down, that is what he told me that the lights would die down if it was not wound up. I started to go into the cellar and went through the kitchen from the dining-room about five or six feet and then turned down the stairs that went into the cellar. ... I stood on the second step with my lantern just on a level with the floor. I saw that the gas was on fire and shut my mouth tight, and I smelt the gas just as it took fire and then it throwed me dver against the wall.”

On cross-examination, after saying he thought there was something wrong with the gas, he was asked: “ Q. You say you thought there was something wrong with the gas ? A. Yes, sir: something wrong with the pipes. Q. Did you think it was dangerous? A. Yes, sir. Q. On the evening of the 28th of May? A. Yes, sir. Q. What did you do about it? A. I put the lights out and then the next morning I went down to Mr. Stewart’s office and told him about it. Q. Then the next evening, that was the evening of the 29th, was it? A. Yes, sir. Q. The evening the explosion occurred? A. Yes, sir. .... Q. Was there any indication that there was something wrong with the supply of gas? A. Yes, sir; with the supply.” After saying that the plumber had been there three or four weeks before the explosion, he was asked: “ Q. Did he go into the cellar? A. Yes, sir. Q. Were you in the cellar with him? A. Yes, sir. Q. Did you observe anything wrong then? A. Well he told me that they looked bad, and he says you had better have them fixed and had better not turn the gas on until you get them tested. . . . Q. He told you to have them tested before you turned the gas on? A. Yes, sir, he told me to see Mr. Stewart and get him to let him fix them. Q. I will ask you if they were fixed before the 28th? A. No, sir. Q. Did you know that? A. Yes, sir. Q. You knew up to the 28th there had been no repairs made ? A. Yes, sir. Q. You knew that Mr. Stewart hadn’t been in there or had no other person in there to repair them? A. Yes, sir. Q. You told Mr. Stewart when you went to see him the next morning of this rising and fluttering of the gas did you, and that it was not safe ? A. Yes, sir. . . . Q. You got the book of instructions did you? A. Yes, sir. Q. Did you read it carefully? A. Yes, sir. Q. Clear through ? A. Yes, sir; I think we read it pretty much clear through as near as I can tell. ... Q. I suppose you read in this book of instructions where it says ‘ cautions ’ about how to proceed in regard to the gas? A. Yes, sir. Q. One caution reads, ‘It is dangerous to approach the gas vault with alight. Never fill the gas generator except during daylight. In case there is a strong odor of gas escaping from the vault, it is evidence of a leak, either from the generator or pipes which should be stopped. Under these conditions it is unsafe to enter the vault. The gas has an especially pungent odor, and its almost immediate effect when inhaled is intoxicating: it will in a few minutes be stupifying and in a longer time be fatal to life.’ Did you read that? A. I think so. Q. Again,‘Never fill the gas generator except during daylight, and do not approach with a light while filling. In case there is a strong odor of gas escaping from any of the pipes or their connections, it is evidence of a leak which should be stopped.’ Did you read that? A. Yes, sir. ... Q. You never asked Mr. Stewart to liave the pipes in the cellar fixed? A. I told him what the plumber said. Q. You knew they needed fixing? A. Yes, sir; I thought there was something wrong. Q. Did you tell Mr. Stewart that the plumber said they ought to be fixed? Q. Yes, sir, I told him they looked as if they needed fixing.”

The witness then described the finding of a leak in the pipe some time after the explosion, on the side of the pipe next the wall, and it is perhaps a reasonable inference that the gas escaped into the cellar through that leak, and exploded the moment it came in contact with the light in the lantern carried by the plaintiff. From the foregoing testimony, all of which comes from the plaintiff and, of course, is entirely uncontradicted, several conclusions follow. (1) The plaintiff himself was the producing agent whose act caused the explosion. If it had not been for the lighted lamp which he carried, there would not have been any explosion. (2) There is not a particle of testimony to show that Stewart had the least knowledge of the existence of any leak or opening in the pipe. (3) The plaintiff had at least as good, and indeed better, opportunities for knowing the condition of the gas pipes and air pump in the cellar, than the defendant. (I) The plaintiff was warned by the plumber not to turn on the gas until the pipe was fixed. (5) The plaintiff admits several times that he thought there was something wrong with the pipe, and that it was in a dangerous condition. (6) He was also informed by the book of instructions that it was dangerous to approach the gas vault with a light, and the generator should never be filled with gas except by daylight. From all which he must have inferred as an ordinarily reasonable man that it would be most highly dangerous to enter a cellar in which there was, or might be, escaping gas, with a lighted lamp. (7) The plaintiff was admonished by the manner in which the gas burned that there was something the matter with the gas apparatus in the cellar, and as an ordinarily prudent person he should have scrupulously avoided any probability or possibility of an explosion, by the introduction of a lighted lamp into the cellar in such circumstances. (8) The plaintiff had personal knowledge that the machinery in the cellar for supplying light was in a defective condition, and believing, as he says he did, that it was in a dangerous condition, he became subject to a special duty of care before entering the cellar, and most particulai’ly so before entering it with a lighted lamp. This duty he neglected with obvious carelessness, and was therefore responsible for the results.

The case comes within different lines of decisions upon the subject of contributory negligence. Thus in Oil City Gas Co. v. Robinson, 99 Pa. 1, the plaintiff was a civil engineer who entered a street sewer with a lighted lantern and was injured by the explosion of gas escaping into the sewer from an adjacent gas pipe. We held that although the gas company was liable for the consequences of the leak in their pipes, yet the . plaintiff was guilty of contributory negligence for entering the sewer with a lighted lantern if it was probable that the escaping gas might enter the sewer, as this was a result which he ought to have anticipated. We said, Gobdon, J.: “ If it was probable that gas escaping from the leak would find its way into the sewer in quantities sufficient to produce an explosion, he ought to have anticipated the result, and not entered the sewer with a lighted lamp. If he did so, under the conditions stated, he was guilty of such contributory negligence as ought to have prevented his recovery.” In Coal Co. v. Jones, 86 Pa. 432, we held that to prove contributory negligence, evidence is admissible that the deceased at the time of the accident was in a position which he had been warned, and himself had warned others, to avoid as dangerous. In Russell v. Hutchinson, 15 W. N. C. 482, we held it was contributory negligence for a boy eighteen years of age to go into a known dangerous chamber to work, against the advice of his father, but at the solicitation of the pit boss, and we sustained a compulsory nonsuit for that reason. To the same effect is Fairview Coal Co. v. Biddle, 18 W. N. C. 108. In Township of Crescent v. Anderson, 114 Pa. 643, we held that one who knows, or by ordinary care may know, of a defect in a highway, and voluntarily undertakes to test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect. In Kibele v. City, 105 Pa. 41, which was an action to recover damages resulting from an explosion of gas escaping from a gas main in the streets and entering the plaintiff’s house, we said: “ 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. lie could not knowingly take upon himself such a risk as this, the risk of an explosion, and for its consequences charge the city.”

These citations might be multiplied, and they might also embrace the class of decisions in which persons -knowing of defects in machinery continue to use it, and are therefore deprived of the right to recover for damages resulting from the defects, but it is not necessary. This plaintiff admits that he knew of the defects in this gas apparatus in the cellar; that he considered it in a dangerous condition, and that he had been warned not to turn the gas on until the defects were repaired. Nevertheless he did knowingly what he was warned not to do, to wit: turn on the gas before the apparatus was repaired, and he did knowingly enter the cellar with a lighted lamp when he knew there was something wrong, without first ascertaining whether gas was escaping, and when he had been told by the plumber and the book of instructions not to approach with a lamp when gas was escaping.

We are clearly of -opinion lie was guilty of contributory negligence, and the learned court below was right in refusing to take off the nonsuit.

Judgment affirmed.