181 Pa. 93 | Pa. | 1897
Opinion by
It is beyond all question that the cause of the unfortunate injury suffered by the plaintiff, was the act of Clegett in throwing the burning lamp. That he was trying to throw it out of the door was affirmatively proved by the plaintiff’s witness Monaghan, and was not at all disputed. In the passage of the lamp through the air it exploded, according to the testimony of Monaghan, and the burning fluid falling upon the plaintiff caused his injury. It is suggested by the learned counsel for the plaintiff that the defendant was negligent in merely having the gasoline on his premises, under the provisions of the act of May 15, 1874, and that this would be sufficient to support the allegation of negligence upon which the right of recovery is based. But an examination of the act does not support the contention. The first section provides that “ no refined petroleum, kerosene, naphtha, benzole, gasoline'or any burning fluid, be they designated by whatsoever name, the fire test of which shall be less than one hundred and ten degrees Fahrenheit, shall be sold or offered for sale as an illuminator for consumption within the commonwealth of Pennsylvania.” It is very plain that this section can have no application to the facts of this case. There was no proof that this gasoline was of less than one hundred and ten degrees Fahrenheit, and there was no evidence that the defendant either sold or offered for sale this or any other gasoline. He was therefore not subject to the terms of this section. Section 8 provides that “All benzine, naphtha or any hydro-carbons created in the manufacture of refined oil from crude petroleum, or otherwise manufactured, shall be inspected and branded ‘benzine,’ and shall not be kept for sale or
The principles which control the judicial contemplation of such an act are extremely simple and thoroughly well settled. The testimony, all of which was introduced by the plaintiff, clearly shows that the act of the employee who threw the lamp, was done at a moment when lie himself was in flames, and as an m dispensable and urgent act of self preservation. He was endeavoring to remove the lamp from the room, an entirely proper and commendable action. To do this he had taken it in his hands and was proceeding towards the door when the flames, emitted from the burning fluid, attacked him and threatened him with most serious and, possibly, fatal results. To escape from' this calamity he instinctively threw the lamp from him, but not until he was severely burned. Such an act, done in such extreme circumstances, is not to be judged by the rules which are applicable ordinarily to acts done in cool blood, with time and opportunity for the party to consider the consequences and the methods of the act he is about to do. The decisions of this and other courts are very numerous, in the application of the principle to cases in which persons suddenly placed in posi tions of peril and impending danger, do things which ordinarily would be acts of negligence. The same principle applies where innocent third persons sustain injuries from acts done in similar
In the celebrated'case of Scott v. Shepherd, 2 Blackstone, 892, 1 Sm. Lead. Cases (9th ed.), p. 737, commonly called the Squib case, it was agreed by all the judges that the intermediate throwers of the squib between the first thrower and the plaintiff were not liable for the injury to the plaintiff, because their acts were done in self defense. DeGbey, C. J., said, “ It has been urged that the intervention of a free agent will make a difference, but I do not consider Willis and Byal as free agents in the present case, but acting under a compulsory necessity for their own safety and self preservation.” In 16 Am. & Eng. Ency. of Law, 396, it is said, “ There is no liability for an injury inflicted by one person upon another, even though the injured person be free from fault, if the cause of the injury was unusual, and one which reasonable and careful human foresight could not have foreseen as such, and which, under the circumstances, such care and foresight could not have guarded against. Such an injury without any want of ordinary care upon the part of the person inflicting it is considered an inevitable accident.” Citing many cases in the notes. In the ease of Brown v. Kendall, 6 Cush. 292, the plaintiff’s and the defendant’s dogs were fighting: the defendant was beating them in order to separate them, and the plaintiff was looking on. The defendant retreated backwards from before the dogs striking them as he retreated, and as he approached the plaintiff, with his back towards him, in raising the stick over his shoulder in order to strike the dogs, he accidentally hit the plaintiff in the eye inflicting a severe injury. It was held that the act of the defendant was a proper and lawful act, and if he used all proper precautions necessary to the exigency of the case and, in raising his stick to strike the dogs, he accidentally hit the plaintiff in the eye and wounded him, this was the result of pure accident, or was involuntary and unavoidable, and therefore the action would not lie.
Judgment affirmed.