Plaintiff was a stationary engineer in the Albion Hotel on Nicollet avenue in Minneapolis. This hotel occupied the upper stories of a six-story building. The first and second stories were occupied by a five and ten cent store. The engine room was in the basement. A water-closet stood on the first floor immediately over the place in the engine room where plaintiff was stationed and where he spent most of his time. In March, 1910, the proprietors of the Five and Ten Cent Store were desirous of moving this water-closet to the basement. Defendants are plumbers, and they were employed for that purpose. They removed the closet, and in so doing left the sewer pipe open. This pipe was directly connected with the Nicollet avenue sewer, which at this point is a small sewer. This pipe was between the floor of the store and the ceiling of the basement. The opening in the pipe was immediately over plaintiff. The ceiling of the basement was of tile. There was an opening in the ceiling at this point, where a pipe went through from the basement to the first floor. At this opening, there was a space between the pipe and the tiling sufficient to permit the air to circle down through, from the place where the open pipe was located, to the engine room beneath.
Plaintiff brings this action against defendants on the theory that ¡sewer gas or sewer air escaped from this open sewer pipe and made its way down into the furnace room through this opening in the ceiling, causing injury to his health, and that the act or omission of
It appears that in summer plaintiff spent but a small part of his time in the furnace room, and this was true of the summer of 1910. In the fall and winter and early spring he spent most of his time there. Plaintiff was at this time about 42 years of age. He testified that he had always been a healthy man. He further testified that in the winter of 1910-1911 he commenced to get thin and run down in health. By April or May he got so he could not perform his duties, and secured a nephew to fire up for him. In August he said he “got clear down,” but did some of his work until the middle of August. After that time he was not there at all for two or three months. He came back sometime in October, but did not do much of anything, except to give directions as to what was to be done, and was not able to work until the twenty-sixth of December, 1911. There is evidence that during this time he was troubled with indigestion, loss of appetite, nerves and muscles all gone, headache all the time, and was dazed so that he could not go out alone.
In November, 1911, he discovered this open pipe and reported it to defendants, who at once caused it to be closed. Since that time he has grown gradually better and has gained 30 pounds in weight.
Another witness, Sisco, who worked with plaintiff at times, testified that he started to work in October, 1910; that after working a few days he “got dizzy and couldn’t get around good.” In December he gave out entirely, got dizzy, and fell over. He had, however, been a sufferer from locomotor ataxia for many years.
Plaintiff never at any time detected any foul smell. Sisco testified that sometimes he would smell something, but never had any idea what it was; and witness Poos, manager of the Five and Ten Cent Store, testified that in the summer of 1911 there had been bad air in that corner of the store, and that the clerks had complained of it. There is evidence, also, that sewer air does not necessarily create ■a foul odor.
Dr. Leonard, plaintiff’s attending physician, testified that plaintiff came to him in June, 1911; that he treated him from that time until November; that he at first treated him for a grippy cold; that plain
Dr. Evans testified that he had seen the sewer pipe in question and the opening in the basement ceiling; that it was possible for sufficient sewer air to be exuded through that opening and disseminated through the room in which plaintiff was to cause the illness from which he suffered ; and that, with Dr. Leonard’s testimony that he had examined plaintiff for any other cause and found none, he should say that sewer gas was the reasonably probable cause of plaintiff’s difficulty.
The terms “sewer gas” and “sewer air” are used both by counsel and by witnesses somewhat indiscriminately. It appears that, properly speaking, sewer gas is a gas arising from decomposition of organic matter when confined; that sewer air is the air of a sewer, and may not contain sewer gas. There is testimony that sewer air is bad air, especially when the sewer is small, as it is at this point on Nicollet avenue, and, if breathed day after day, may cause the impairment of health here complained of.
At the conclusion of plaintiff’s evidence, defendants moved the-court to direct a verdict in their favor on two grounds: Eirst, that defendants are not liable to plaintiff, even if they were negligent; second, that there is no evidence in the case reasonably tending to-support the conclusion that the sickness of the plaintiff resulted from the negligence of the defendant, or from breathing sewer gas. The-trial court sustained both contentions, and granted defendants’ motion for the direction of a verdict.
Order reversed.