Gen. No. 13,396 | Ill. App. Ct. | Oct 28, 1907
delivered the opinion of the court.
Appellants’ counsel contend that the court erred in admitting in evidence, over their objection, secs. 1456 and 1459 of an ordinance of the city of Chicago, set out in the declaration. The water closet in question was an exterior closet, consisting of a single room, not within or attached to any other building. The first part of see. 1456 reads thus: “Water closets shall not be placed in an unventilated room or compartment. In every case the room or compartment must be open to the outer air, or be ventilated by means of an air duct or shaft.” This part of the section, if it stood alone, would be applicable to all water closets. But the remainder of the section relates solely to interior water closets. Section 1459, a subsequent section, relates exclusively to water closets “outside of buildings” and provides specifically that they “must be ventilated by means of slatted openings in the door and roof.” The closet in question was a small wooden room and placed outside of and away from other buildings. The means of ventilation prescribed by sec. 1459 is quite different from that prescribed by sec. 1456, and the former section controls in respect to the water closet in question, and section 1456 is inapplicable to it. “"Where there is in the same statute a particular enactment and also a general one, which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken only to affect such cases within its general language as are not within the provisions of the particular enactment.” C. & N. W. Ry. Co. v. City of Chicago, 148 Ill. 159-60, citing Endlich on Int. of Stat., sec. 339. See, also, to the same effect, Dahnke v. The People, 168 Ill. 102" date_filed="1897-11-01" court="Ill." case_name="Dahnke v. People">168 Ill. 102, 111, and The People v. Kipley, 171 ib. 44, 84. It was error to admit in evidence sec. 1456. We find no error in the admission in evidence of sec. 1459. The court, by appellee’s first instruction, submitted to the jury the question whether the appellants were guilty of negligence in violating secs. 1456 and 1459, “or either of said sections,” and appellants contend that this was error, and such is our opinion. It is shown by the evidence, and not denied, that there were no slatted openings in the door or roof, of the water closet. Also the evidence shows that there was no permanent opening of any kind in the closet for the admission of air from the outside. It is true that there were two windows in the closet on hinges, which windows might be hooked back, when they would be open for the admission of the air, bnt there is no evidence that they were or either of them was kept open constantly, and the evidence tends to prove the contrary. Bnt counsel for appellants contend that the absence of slatted openings in the door and roof of the closet was not the proximate cause of the explosion, as charged in the second count of the declaration. Both Long’ and Maher having lost their lives by the explosion, there is no direct evidence of what occurred inside the closet after they entered it the second time and before the explosion, and we cannot concedo, in view of the evidence, that the mere fact of the explosion is sufficient evidence that it was owing to the absence of slatted opening’s in the roof and door of the closet, and that the explosion would not have occurred had there been such opening’s. We think the evidence tends strongly to prove that the explosion was of illuminating gas, which had accumulated below the closet floor, of which the trap-door was a part, and not of accumulated gas of any kind above the floor of the closet. When Maher and other police officers examined the closet February 26th they found no gas of any kind in the closet or in the pipe leading from the stool to the trap, although they stuck down a lighted match in that pipe. They did not, on that day, raise the trap-door, because of Maher’s suggestion that it would be dangerous to do so, and that they should wait till the next day, when an inspector would be there. This was said by him in answer to a suggestion by one of the persons present to get a tool and raise the trap-door. On the next day, February 27th, the date of the explosion, the janitor was in the closet cleaning it, which cleaning-must have ■ occupied some minutes at least, and, while engaged in cleaning the closet, he did not observe any odor of gas, and he left the closet “about five minutes before the time of the explosion.” After the janitor left the closet Maher and Long borrowed a key from one of appellants’ employes and opened the door and entered the closet, after which they came ont of the closet and borrowed a chisel and screw-driver from some carpenters who were working- across the street from the closet, and again entered the closet with said tools. The evidence is that the trap-door of the closet was a part of the floor and “was so constructed that, by reason of the dampness occasioned by the scrubbing of the floor, it fitted so tightly that it could not be removed, except by the use of a screwdriver, chisel or other tool.” On the previous day, on its having been suggested in Maher’s presence to get a tool with which to open the trap-door, he said, “No, we had better not do that, as it would be dangerous; let us wait until tomorrow, when we can have an inspector here.” It was so dark in the closet in the daytime that when the trap door was raised “a person could not see more than eighteen inches below the floor without an artificial light.” There is evidence that Maher had not with him a lamp or other light, but none that he or Long had no matches, and the evidence shows that, in the investigation made after Officer Casey was found dead in the closet February 26,1904, Maher was present, and in his presence lighted matches were put down in the soil pipe leading from the stool of the closet to the trap. The sole conceivable object of procuring the chisel and screw-driver by Maher and Long was to' raise the trap-door. It is a legitimate inference that Maher and Long failed to discover, as did the janitor shortly before they entered the closet, any gas in the closet above the floor, as otherwise they would probably have refrained from raising the trap door. The evidence shows that the main sewer, with which the sewer pipe of the closet connected, was in Fortieth avenue, and the gas main pipe of the People’s Gas Light & Coke Co. was also in that street, adjacent to the main sewer. On examination of the premises after the explosion, illuminating gas was found at the point where the sewer pipe entered the closet in such quantity that it ignited when a lighted match was applied to it, and outside the closet, along the ditch in which the sewer pipe connecting the closet with the main sewer was laid, there were fissures in the ground from which illuminating gas was escaping, which ignited on the application to it of a lighted match; that the gas company opened up the gas mains and found a break in the gas main; that there was a break in it a foot long. The evidence of Claffy, a sanitary inspector, is that on the day of the accident he smelled gas at the closet, and that, in his opinion, the odor was that of illuminating gas. Also: “From my inspection there I have a theory of what caused the explosion. That theory is it was illuminating gas. I am familiar with sewer gas, as it is known to the trade. There is a distinctive odor from the sewer. It is not the gas odor you get from illuminating gas, nor that smell at all. It is an odor from stagnant water in which there is decomposing animal or vegetable matter, or both.”
Appellee’s counsel quotes an extract from the opinion in Fuchs v. St. Louis, 133 Mo. 179, 196, in which the court expressly recognizes the fact that such sewer gas as will explode is colorless and inodorous. The same counsel also contends that spontaneous combustion was the cause of the accident, and says that “plaintiff could prove that sewer gas, or illuminating gas, or both, would explode when confined.” There is no evidence whatever that illuminating gas will explode spontaneously when confined, and no such proof is possible. If such spontaneous explosion could occur, the accumulation of large quantities of gas in reservoirs by gas companies, for distribution to consumers, would be attended with so great danger as to be impracticable. Millions of cubic feet are so accumulated and confined. It is a well-known fact that illuminating-gas will not explode, unless it contains a certain percentage of air, and not then unless it comes in contact ■with a spark or fire in some shape. Appellee’s counsel, in another place in his argument, apparently recognizes this fact, saying: “This building’ was heated and lighted by electricity,” etc. There is no evidence that the electric lights were exposed, or that they were not inclosed in hollow glass bulbs, in the usual way. That the lights were not strong or brilliant is evident from the fact that in the daytime, when the trap-door was raised, one could not see more than eighteen inches into the trap-box, which was about four feet deep. In view /of the entire evidence, the jury, to say the least, would /have been fully warranted in finding that the explosion '¡was not owing to the absence of slatted openings in /the door and roof. In view of the conclusion to which I we have arrived in respect to the contention of appellant’s counsel, which will be next considered, we do not find it necessary to pass on the question whether the verdict is manifestly contrary to the weight of the evidence. Counsel for appellants contend that Maher, deceased, did not enter the closet by invitation of the appellants, express or implied, and that there being no evidence that appellants wilfully or wantonly injured him, there can be no recovery. There is no evidence of express invitation, and appellee’s counsel does not claim that there is, but claims that there was an implied invitation. The ground of this claim is that one of defendants’ employes loaned to Maher' and Long, at their request, a key to the closet, using which, they entered the closet. The closet, as the evidence shows, was provided by appellants for the sole use of their employes, and a key was given to each of the employes for his personal use. There is no evidence that any employe had authority to lend his key to anyone not an employe of appellants, or that the appellants, or either of them, knew of the lending of the key to Maher and Long, and under these circumstances an invitation by appellants cannot, as we think, be implied from the lending of the key.
Appellee’s counsel contends, correctly, as we think, that Maher, as a police officer, was lawfully on the premises, and had lawful right to enter the closet with Long, the inspector, for the purpose of investigating its condition. This being true, and the closet not being a residence, they might legally have broken open the closet door, if necessary to secure entrance, as was done by the fire patrol in Gibson v. Leonard, 143 Ill. 182" date_filed="1892-10-31" court="Ill." case_name="Gibson v. Leonard">143 Ill. 182, hereinafter referred to. Appellee’s counsel contends that Maher, having had lawful authority to enter the closet, an invitation or license to enter may be fairly implied, 'and in support of this .contention cites 1 Thompson’s Com. on Law of Negligence, sec. 981. The author cites, in support of the text, several Massachusetts and one Minnesota, decision. There is no doubt that the decisions of courts of some foreign jurisdictions support the text; but the author, in the same volume, sec. 980, cites Gibson v. Leonard, 143 Ill. 182" date_filed="1892-10-31" court="Ill." case_name="Gibson v. Leonard">143 Ill. 182, and Beehler v. Daniels, 19 R. I. 49, as holding the contrary. We do not regard the question an open one in this state, since the decision in Gibson v. Leonard, 143 Ill. 182" date_filed="1892-10-31" court="Ill." case_name="Gibson v. Leonard">143 Ill. 182. Gibson was a member of a fire insurance patrol. The patrol forced open the door of the main floor of a building, for the purpose of extinguishing a fire which had broken out in the upper stories of the building. The patrol had statutory authority to enter any building on fire. While Gibson, the plaintiff, was descending from the main floor t.o the basement of the building, by means of an elevator or hoistway, the rope which held the counter-weight of the elevator broke about fifteen inches above the counter-weight, and the counter-weight fell on one of Gibson’s legs and so injured it that it had to be amputated. It was charged as negligence that the counter-weight was unguarded and in a dangerous condition, and that the rope to which it was attached was old, rotten and of insufficient size and strength. The verdict and judgment were for the defendant in the trial court, and the judgment was affirmed in this and in the Supreme Court. The court held that the plaintiff was lawfully on the premises, hy permission of the law, hut not hy invitation of the owner of the premises; that he was a mere naked licensee, and that the owner owed him no duty, except to refrain from wilful or affirmative acts injurious to him. In the course of the opinion the court say: “Appellant was not invited or induced by appellee to go into the building, but he was lawfully there. Both the common law and the statute gave him the right to go there. He being there lawfully, is there any evidence tending to show that appellee invited him to make use of the elevator or hoist? If appellee had done anything to induce him to come into the building, then it might possibly be said that he had a right to rely on the appellee’s keeping the premises, including the elevator, in a safe condition while he was there. But here there was not even a license from appellee— the only license was from the law; and so he had no right to conclude that there was an assurance from appellee that either the premises or the elevator was safe.” The following cases are to the same effect: Beehler v. Daniels, 18 R. I. 563; Same v. Same, 19 ib. 49; Eckes v. Stetler, N. Y. Supreme Ct., 90 N.Y.S., 473" date_filed="1904-11-15" court="N.Y. App. Div." case_name="Eckes v. Stetler">90 N. Y. Supplement, 473; Hamilton v. Minneapolis Desk Mfg. Co., 78 Minn. 1" date_filed="1899-11-09" court="Minn." case_name="Hoey v. Ellis">78 Minn. 1; Faris v. Hoberg, 134 Ind. 269" date_filed="1893-04-20" court="Ind." case_name="Faris v. Hoberg">134 Ind. 269; Woodruff v. Bowen, 136 ib. 431; New Omaha T-H. Elec. Light Co. v. Anderson (Sup. Ct. Neb. 1905), 102 N.W. 89" date_filed="1905-01-05" court="Neb." case_name="New Omaha Thomson-Houston Electric Light Co. v. Anderson">102 N. W. Rep. 89.
Other objections are made by appellants’ counsel, which we deem -it unnecessary to pass on. The judgment will be reversed.
Reversed.