*1 checking correspond- Cassler’s individual account with ing knowledge knowledge sums. Mitchell’s respeet the bank for which he was to act authorized of the various was he set Cassler accounts. It who up the method for the collection distribution of proceeds Agency’s sales of the Cassler of coal for producers including plaintiff. various Mitchell knew at all from the times information contained paid exactly money invoices how much due the plaintiff was in the Cassler accounts. “Distribution” suggest prem- acting To for when the bank that, using money Mitchell ises, did not know that he was belonging plaintiff pay Agency’s Cassler debt the bank be to him than would to ascribe less ordinary any significance intelligence. Nor is it of that Mitсhell took from Cassler directions as to the proceeds distribution of the checks received six payment plaintiff’s see v. coal: Witherow supra, p. at 492. Weaver, judgment is reversed and the record remanded judgment plain-
with directions that be entered for the tiff full amount of its claim with interest complaint. due dates as various shown Pittsburgh, Appellant.
Good v. *2 March Before 1955. Argued 15, C. Stern, J., and Ar- Musmanno Jones, Bell, Chidsey, Stearns, JJ. nold, with, City
Thomas E. Assistant Barton, Solicitor, City him Frank J. McKenna, Jr., James Solicitor, Legnard, appellant. Gr. Assistant for Solicitor, Buckley, V. Kay
E. him with Malcolm & and Mercer Buckley, appellees. May
Opinion by 1955: 23, Mr. Justice Jones, are the owners entireties dwelling Pittsburgh, at 1522 Lowrie Street, they occupying were February, as a residence in 1948, partially destroyed when the house was ex- plosion in the cellar. Each of them also suffered se- personal injury. They rious instituted action the instant trespass against Pittsburgh to recover *3 damages personal injuries property for their loss, and alleging explosion, damage, that the which caused the negligence City. impleaded City was due to of the The compulsory two additional defendants as to whom non- suits were entered at trial the the and case went to jury against the alone. The trial resulted in a disagreement jury. City’s the of After the for motion judgment on the whole record was the case denied, jury on for came retrial at the returned a verdict generally. being for the defendant The court en banc, opinion question plaintiffs’ that the con- tributory negligence erroneously had been submitted to granted jury, plaintiffs’ the trial motion for a new appeal. from that took this and, order, appellant’s The contention is that the matter of contributory plaintiffs’ properly was and of en left to action the court opposite based on the was a mistake banc, view, law remediable this court on review.
At introduced evidence the retrial, which established set circumstances. folloAving 25'8 heavily Pittsburgh travelled in is a
Lowrie Street wide, paved Belgian thoroughfare, accom- and with blocks, cartway car of street modates its a double set within longitudinally gas A under the tracks. main line runs surface of the tracks. There was street between the plаintiffs’ opposite gas main connected to the line, lay property, and line which three feeder service ran and one-half feet below the surface of street through plaintiffs’ house which entered surrounding feeder front cellar wall. earth tight firmly packed line and the cellar was was wall pipe. Immediately wall there around the inside the upright position, a was fitted to the feeder an line, right-angle top line from the which a elbow horizontally ceiling run to the cellar and, thence, correctly along ceiling. judge As learned trial opinion for en banc, related the facts in his the court —(cid:127) during year explosion, “For about a before the periods years there that, intermittent several before was a hole the surface Lowrie Street between plaintiffs’ house. car two sets of tracks front ‘dummy’ space It as be- [the about as wide deep long tween the feet several tracks], point. eight at contour dimensions inches one Its jolted violently when their that trucks were such were wheels and hole. The contact of wheels traversed could house. These caused vibrations *4 lights by occupants; the electric at times be felt the needle the victrola rattled and windows ‘blinked’, by groove’. truck ‘jumped . . caused the . Vibrations by earth firm the hole carried the and were wheels upon causing vibratory surface stress beneath the street just line inside the service the ‘elbow’ long ‘metal strеss caused a This continued cellar wall. through escaped, fatigue this in the ‘elbow’. Gas crack’ ex- the caused the cellar and accumulated crack, plosion.” Although plaintiffs the had averred in their complaint they that un- had notified the they usual nature and extent of the offered vibrations, support no evidence at whatsoever trial to aver- the ment. jury,
The trial court instructed the inter that alia, City, negligently repair if even it had failed to negligent plaintiffs was not street, as to the respect property, of their therefore not liable unless the harm could them, resultant such that it reasonably City. or should have been foreseen any jury, then court to the “I don’t observed see finding evidence this case to warrant a that plaintiffs contributorily negligent. ... were you finding in this evidence case could not make a support plaintiffs con- the conclusion that were tributorily negligent.” at the conclusion However, charge, City requested for court counsel jury respect to instruct matter of the with plaintiffs’ contributory negligence. court To this, thereupon charged jury acceded and of the unusual vibrations were aware years explosion prior if some five that, gas re- in the line inside the cellar crack elbow from the transmittal of vibrations caused sulted hitting in the for the the hole it was street, vehicles say “used the care of whether ordinary prudence risk person with reference to the explosion causing damaging you they If feel vibrations. due to those pro- prudence ordinary person of a the care use you injury, against then could conclude themselves tect contributory negligence. If guilty they were they contributory negligence, then they guilty of are City was case whether in this recover could not negligent not.” *5 awarding plaintiffs
In court a new the trial, opinion charge en banc stated “The its that as contributory negligence, Evi- error. however, binding plaintiffs they dence on had revealed knowledge vibrations caused years. charge for a In traffic number of effect, permitted contributory negligence from to find explosion. knowledge this and the The matter decisive knowledge plaintiffs, with of vibra- whethеr persons ordinary prudence of would acted tions, protect have acted to themselves from the risk involved. upon The defendant burden was to show what plaintiffs’ testimony having conduct not disclosed was, testimony plaintiffs may goes, it. far as the So precautions ordinary man of taken all the contributory prudence taken. The issue of would have negligence not have been submitted at all.” should plaintiff negligence has of action, course,
The establishing by preponderance of the the burden of proximate fault as the evidence the defendant injury suit. On other cause hand, contributory proving plaintiff guilty burden of squarely on while falls defendant. But, duty affirmatively plaintiff has no to show his may evi- he not rеcover if the freedom still fault, contributory his own case him of dence in convicts already negligence. banc the court en As indicated, binding recognized re- that evidence explosion years prior that for several vealed knowledge intensity they the nature and had no there was evidence and, further, vibrations had had to show whether whatever safety. any precautions own So their to insure taken plaintiffs, knowl- with discloses, far the evidence nothing to edge of the vibrations, character injury possible against guard and loss. real issue, *6 jury permitted is whether the should have been then, plaintiffs’ to consider take whether the failure to proper respect alleged action with to the vibratiоns contributory negligence. constituted theAs verdict for the re- defendant could have judge, under from the instruction of the trial sulted, jury’s finding contributory plaintiffs guilty the the negligence, present purposes we shall assume jury reasonably the could have the concluded that explosion in the leak- house from the age consequence in the cellar was a within fore- the by City’s long-continued neglect seeable risk created the of the hole in the middle of Lowrie Street. If that were not then the case should not been sub- have so, plaintiffs mitted to the at all since the would prove City guilty negligence. failed to of causative recurring question contributory negli- to the But, gence, possibility awareness of the harm inside plaintiffs’ house from the vibrations due to the hole imputable plaintiffs in Lowrie Street is as City. plaintiffs anything, to the if in Indeed, were, position appraise possibility a much better consequent harm from the than vibrations City. chargeable with con- was, course, knowledge structive of the existence hole plaintiffs, Lowrie Street. other But, hand, on the knowledge had actual of the unusual in- nature and tensity striking vibrations caused vehicles despite Lowrie Street. the manifestations Yet, jolting, inside the from the outside house, to which idly they stood for at least a testified, year prior explosion notifying without of the condition known to them. §463 of
As defines Restatement, Torts, it, “Contributory negligence part of is conduct on the plaintiff which which falls below standard
he should
conform for his own
protection
ais
legally contributing
cooperating with
cause,
about
negligence of the defendant
bringing
Pa.
plaintiffs harm.”
Kovalish v.
Smith,
See, also,
The order trial reversed and granting new for the defendant. ment is here entered on the verdict Dissenting Opinion Me. Justice Musmanno: *8 On the of John A. evening February Good, 2, 1948, their 70 of Rose G. and years 67; his age; Good, wife, comfort and were daughter 26, enjoying Mildred, Pitts- their 1522 of home at Lowrie Street, tranquility smelled when who was burgh Mildred, ironing clothes, her the same time a odor At about strange gas. and odor father and mother both detected the same Mil- investigate. Mr. Good descendеd into the cellar to report Gas Equitable Company dred called at the tele- alarming symptom engaged while still and, explosion a tore the instrument blast phone, lifted her from the sofa on which she was her hand, a hole the cellar through blew her father sitting, halfway through and drove her mother wall, breaking legs. both her The house demolished was floor, equipment destroyed and all its furniture ruined. wreckage
Amid the a and debris which once devastating explosion it was home, discovered that the leakage gas had been caused the cellar from a broken sub- elbow which connected the sidiary line conduits the house with main fuel beneath the surface In of Lowrie Street. the bed busy thoroughfare, this wide and which аccommodates many years two street car there had existed for tracks, large a long, hole estimated to be 6 feet wide feet deep. prior years and from 8 to 10 ten inches Some large to the accident a main under water had broken Lowrie Street near the intersection of Lowrie and De- repairing IIaven Streets. main the In. this water dug deep enough had a man to for stand in, refilling but in hole the work done such depression deeper fashion that a resulted which sank years passed by. Although occasionally as the some- thing up was done to fill one hole, prior explosion February vear had 2, 1948, well-being bestowed no attention on this threat to the neighborhood travelling public. оf the entire and the Large hauling contractors’ trucks excavated earth, big every passenger beer trail- trucks, vehicles of kind, conveyances types ers and all other of wheeled today city passed large one sees on the streets of a through abrupt deep over and crater. falling heavy hitting edge cavity, wheels depths climbing surface into its and then back to the produced a hammer of the street blows as forceful as It m an anvil. was inevitable that such methodic passing
unceasing agitation would affect the line pit. professor C. anvil A. Ackenheil, Jr., beneath this *9 Pittsburgh, University engineering at of civil upon “The of the affected area: testified examination years pipe number of for a had been there clay enough. cementing action from there was clay sandy gravelly, soil— was a sort of a soil—it enough cementing bend action there to there was surrounding it acted mass so that soil unit.” eventually gets in time,, iron tired and so,
Even conveyors gas con- metal under the blows stantly moving succumbed of Lowrie Street vehicles consulting engineer fatigue.” “metal E. B. Lincoln, Pittsburgh Testing Laboratory, highly reputable years, exam- he had connected for 19 with which been applied re- the broken elbow which ined tests to destroyed explosive gas Good leased which comprehen- and then testified in Court. After a home, by plain- summing up case sive of all the factors question: tiff’s Mr. Lincoln was asked counsel, upon premises “Based those and the observance you photographs there in the which have seen, testimony being anything in the a total absence of else any applied before to indicate force to the elbow you gas escaping from that will elbow, opinion your give your professional in us us and tell opinion in the the crack which resulted what caused escaping in Plaintiff’s Exhibit shown 53?” Number opinion my “It it was His answer was: ' - -
caused the vibration.” Cyril only defendant called one witness, Carnegie Technology. did He Wells of the Institute of findings he Mr. but not refute Lincoln’s stated upon conclu- base a further needed evidence affirmatively that it was sion. he did state However, *10 possible in the that the the frаcture vibrations caused -pipe elbow. charging Judge jury, in
In the learned Trial their consideration Court below excluded from any question contributory negligence. at However,, charge, counsel the termination of his defendant’s urged put contributory negligence case him to into Judge against judgment, so. his better did and, unquestionably con- It was an choice unfortunate and jury fused defend- which returned a verdict Judge acknowl- ant. Trial banc Court en edged inter- that an error and in the had been made justice integrity new ests the law ordered Majority that trial. The has of this Court reversed my Opinion in order of the Court an which, below justify judgment, fails to its drastic decision. place, has In trial the first the denial of new every deprived right of а inherent jury argument jury. namely, In view full to trial, contributory Judge’s original position of the Trial that negligence plaintiff’s attorney, ac- was not involved, argue cording did not to a statement his brief, jury. question later when However, contributory put charge, end at the of its Court, plain- late for the into the was too case, attorney argue proposition. Thus tiffs’ jury. counsel allowed to believe that had acted that his clients not must have admitted attempt reasonably prudent persons since he did contributory negligence. deny charge Judge “In this During charge, said: the Trial his anyone letter wrote a no case there is evidence the time .” statement at about this hole. . This because did no harm the it was made negligence. contributory However, excluded Court had negli- contributory definitely made Court when gence an the Court’s issue, statement that no letter accepted, prob- had been written could have been ably accepted, by of contribu- evidence tory negligence. Especially is this true defend- since open ant’s had counsel declared Court “I that: certainly they plaintiffs] think that the fact that [the something posi- knew of the vibrations and did not do City, contributory negligence tive to warn the part.” their *11 Opinion passes Majority
The in silence this over very merely vital item in the case and states that the justified plaintiffs finding guilty of the contributory any they because did not take positive notifying City action the of the conditions on Lowrie Street. I in this there case, As see the facts necessity notify was no or reason for the to City. require anyone the The law does not to do a thing, nothing vain and useless be more and could superfluous City notifying of than the the continuing earthquake unceasingly the miniature the con- affected inhabitants the inanimate as well as neighborhood tents of the and houses the of Lowrie Streets. at trial testified that DeHaven Witnesses the only they personally not ema- feel the vibrations nating throughout day from the but that crater, picture of the walls houses windows shook, rattled, lights frames dishes clattered, electric moved, flickered, jumped grooves from time victrola needles their edges to time automobiles would strike the caps fly depression force that hub would with such off and roll to the sidewalk. can- notice which
Aside constructive policemen, possibly escape, it not was inevitable city employees other must have seen firemen and ever-continuing tattoo. heard the telltale hole with its argued if had written The has n complaint protest, have matters would letter of not oc- been corrected and accident would threatening into But situation written curred. im- far the surface of the street in characters more any pressive be. Each than the words letter could passing through its truck the hole communicated message City sank into each automobile which Hall, maintenance letter the street hole wrоte its department City. Majority defendant was concedes that
chargeable notice the defect with constructive resulting vi- but not with notice of the Lowrie Street, battering of To brations. assume that the constant deep against edges could massive wheels deny correlation cause vibrations would be in Nature. As testified matter force surrounding pipe had scientist the earth Ackenheil, practically density make such as achieved adhesive Striking pipe part outer wall of itself. surely packed agitated earth Major- plucked harp produces But musical tones. *12 ity goes plaintiffs say “in much to that a on the were position appraise possibility consequent better to the City.” than There harm from the was the vibrations slightest intimation in the entire that not record the known the vi- the knew could have pipe. boring iron into the walls of the were brations engineers, City employs chemists; scientists and testing stations. Certain- it laboratories maintains superior position ly City know as- was in a an iron effect of vibrations on the scientific certain people living ground pipe in than two old buried years declining of their in the seclusion lives out the charge people these with contrib- home. To of their they uting their home because destruction is me stayed minded their own affairs home and illogical application doc- cruelest of the most contributory negligence encount- trine of that I have my years ered all at the law. The had vigi- right they much to assume that would have City’s protecting from lance of the them servants negligence by gas resulting an invasion they protected ivould be from an invasion burglars pays for taxes and robbers. When a citizen compen- right expect street maintenance he has injuries resulting satory damages for losses due to badly of the from a maintained street. because If, depression a truck had direction on Lowrie lost Street, be home there would and crashed into damage City’s responsibility no doubt change rule because the inva- done. How does that through gas a than in the cellar rather comes sion parlor the hole when it is truck in the obvious proximate the eventual cause of street is smashup ? directly pipe beneath
If truck had broken the a explosion could had no one and an followed, crater resulting question that the would be liable for merely evaporate responsibility damage. How does point sev- feet and broke at a several because the negligent original act, from the months distant eral continuing especially one, when day adding to the camel back its straw each explosion? eventual City argues it that had
As above indicated, repaired the would vibrations, known of repair City’s responsibility the hole but hole, explosion only preventing depend duty plaintiff’s It well a house. owed as die *13 repair it ad- travelling public Once is the hole. non-repair of the it as must be, mitted, responsible City was tortious act, a constituted flowing for all untoward from that me events tort. To escape respon- it is inconceivable that a can tortfeasor sibility simply slightly because his act takes a tortious (but thoroughly natural) different turn from usually tort. which of such follows commission Majority carry reasoning To in case out this long would mean that as the so tort-feasor can show damage something that the then done was it unusual, regarded unexpected, must be therefore unforesee- compensable. consequently able and not how- law, illogical, Mr. is not so unreasonable or ever, unfair. jurists great in the Justice one Mestrezat, history proximate оf this stated the law Court, Keystone cause v. follows the case Wallace proxi- Company, Automobile 239 Pa. 117: “The 110, imposing liability mate cause of an accident is directly or dominant and efficient cause which acts by necessarily other not created sets motion causes, naturally independent agency, rea- an and which sonably injury consequence of results which as primary might and under the circumstances, act, things anticipated ought been in the nature of to have ordinary intelligence prudence, al- a man of improbable might though, it have seemed advance, injury actually precise re- form in which the been foreseen.” sulted could have might improb- though it have seemed even Thus, could weakened the able that vibrations improbability City from pipe, not save this responsibility the vibrations were clear that when is damage. causing other obvious empty means cases where are no Our books injuries liable for and losses held were tortfeasors orig steps removed and three two were Railway v. case of act. The inal tortious Gudfelder interesting and illuminative of 629, Pa. Co., *14 point. permitted employees negligently Bailroad perforation containing gallons of a railroad car 7,000 ground naphtha, of most of which ran out on to the way and found its to a basin. The still catch car, running naphtha, was now on the tracks moved past light ignited dripping naphtha. a switch resulting naphtha flamе followed course of the baek into catch basin from basin the catch a sewer which at the mouth terminated culvert standing. bridge plaintiff near a on which the was explosion naphtha An from the occurred close to this point injured. plaintiff and the was The defendant company argued plaintiff’s too misfortune was negligent far removed from the act the railroad responsible. contrary. hold it This Court held to the writing Justice for the said: “We Court, Mestrbzat, naphtha as the must has that the assume, found, ignited negligent act of the defendant’s employees punctured drawing near the burn- car flowing ing light naphtha it. switch when the consequence The natural and of that act inevitable apparent must be would be to the dullest intellect and presumed by any employee to have been foreseen who perform possessed requisite intelligence containing required operating him in duties a car dangerous naptha. such a . . substance . Possessed knowledge knowing generally of a of these facts and highly naphtha, combustible character of the de- employees removing fendant’s under the car, must if have foreseen the fact circumstances, naphtha lighted un- the fire would be was once naphtha naturally controllable and follow would Nothing could so far as it flowed. its course and probable, anti- hence to be reasonable or be more cipated by bound the defendant’s servants who wеre ordinary consequences
to foresee the and natural their conduct.” reasoning
Applying case to Gudfelder cáse at it can be said that the natural and inevi bar, heavy consequences passing table trucks over the depression apparent on Lowrie Street would be *15 presumed intellect must be have been dullest and City’s agents employees, or servants foreseen possessed intelligence perform requisite who say, required in To duties the maintenance streets. Majority says, should as the that here known results vibrations is not controlling feature in this all. If the case at prob charged knowledge of and with the reasonable non-repair consequences resulting from the able it did not matter the Lowrie Street whether hole, possible рlaintiff those conse knew or not know of prostrate quences. running man A a motorman down escape by saying responsibility on the cannot tracks prostrate the motor man did not shout tell that danger. his man of
Going Justice Mestre elder case, back to the Gudf explosion in the “Had first resulted said: zat hardly injury plaintiff think be it would we liability seriously that there was no contended naphtha. firing negligent same act produced explosion produced that the last cause only is Time between them difference first and ” distance.’ Dissent- I said earlier confirms what This namely, broken the Opinion, 'if truck had ing that a explosion imme- had and the the crater beneath argued seriously that diately not it could be followed, damage. resulting liability for the be there would produced result- the vibrations cause which The same explosion which would cause ing same only tbe tbe depression, namely, tbe pipe, have broken “time being the two situations difference between distance.” 189, 330 Pa. 184, Hoebler, Paulscak v.
Tbe case of tbe in my opinion, reflects, is another mirror wbicb Paul In tbe here. tbe done injustice being sign electric large- placed defendant scak case tbe In building. old a 60-year motor on top board and wall weakened motors tbe tbe time vibrations plain tbe and injuring it to fall building causing tbe Court for this in speaking tiff. Mr. Justice Maxey, plaintiff, for tbe tbe verdict returned affirmed wbicb tbe instructed correctly “Tbe trial judge said: tbe cause of that tbe a fact it find as might been bad wbicb a vibration of tbe wall was collapsing slight of a year, on for a period going over in the aggregate, that, but each minute hour, weakening loosening it bad been long period, *16 eventually therefore that it the wall and tbe side of collapsed.” that indicates jury tbe “Tbe verdict of
Further: of tbe operation tbe that inference was drawn tbe building on this equipment defendant’s additional period sufficiently long over a caused vibration in resulted wbicb collapse, tbe wall time to cause whether is legal question Tbe only plaintiff’s injuries. a such on predicated can be or not tbe that it can.” We bold finding. 272 Dravo Co., I. v. F. & Co. Pittsburgh
The case of ignored be cannot wbicb anothеr one Pa. 118, case involved the of law the analyzing principles plant manufacturing There tbe plaintiff’s us. before below feet some the Ohio River on located was de tbe by conducted being operation constructing a re tbe river bed traversing A broken fendant. The defendant’s tbe surface. came to wbicb oil leased stick into employees a negligently dropped burning the river and the fire carried over resulting destruc- of oil to the its pool plaintiff’s wharf, causing de- tion. The Trial Court charged jury fendant action of bound to anticipate air if the fire was so currents, and, conveyed, would an which would agency constitute intervening liability. relieve This Court held the instruction be in pres- error: “This overlоoked fact ence of such a condition might been, say could ‘should have been’ observed, that, view of it have been atmospheric might conditions, obvious that injury fire would cause the did result. ‘No doubt a hurricane or be gale may a nature, such as to be out usual plainly course of and therefore to be the court as pronounced of a . . But dan- ordinary new cause. intervention of wind a fire is one of ger helping spread to be . . .” things naturally anticipated’ in the ease at bar Thus, ordinary danger a pipe subjected period vibrations over continuing 'of break is natur- years things would “one to be ally anticipated.”
In v. 321 Pa. the driver Shipley Pittsburgh, 494, an order to avoid with another automobile, colliding at- car that in front it suddenly stalled bridge, some tempted by passing avoid around it, but, the center crossed line of the bridge mishap, n lefthalf of the a- 5 inch curbstone on mounted road, a 14-feet hit proceeded across bridge, sidewalk, *17 the gully and crashed to railing bridge through rail There guard below. was evidence of This Court held that the defendant City defective. must their “Municipalities keep was liable. Pittsburgh as be safe for reasonably ‘in such condition bridges ” it could be Although argued travel.’ public stalling proximate accident cause of this bridge could not of the car on the and that the Court have foreseen this unusual circumstance, quoting §435: actor’s “If the said, Torts, Restatement, bringing in about conduct factor a substantial fоre- neither harm to the fact that the actor another, the harm or extent of saw nor should foreseen the have prevent him in does not the manner which occurred being liable.” flagrant dereliction I the case at As view bar, failing repair part duty in on the of proximate of cause was the Lowrie Street injuries. The cases losses and serious prop- I cited law when demonstrate objective erly applied realities blind to the is not Majority, I as of life. The decision of view of only into the ranks can throw consternation it, prac- principle authority, confusing precedent and and quandary legal profession is left tice until the injured seeking impart citizens to what advice justice. in behalf of intervention their services and wrong a rem- without that there is no The rule of law edy in this setback a serious to have suffered seems 352-page reading record, meticulous of case. After a only what was lost I conclude that can through prized possession, their own home, their most adjudication case Yet the outside fault. some only them without remuneration now not leaves injuries their physical the destruction their them the fault! accuses but it even abode, bring reasoning such a Only about can a forced Majority does, liken, For result. instance, to that in their home the situation my estimation, passengers in an automobile is, comparison com arbitrary gratuitous which is an experi analogy lacking commonness of pletely *18 enee with the the case at The Majority facts of bar. says: passenger “On where a analogous principle, control or an has an to opportunity who automobile, protest influence the sits conduct, driver’s without ing permits of car and negligent operation himself to be to negligence may driven his his injury, * recovery.” bar a
What is the relevancy of this observation? The of where Majority also the situation speaks land owner a fire on his neighbor’s property seeing apparent does not it. It not attempt is extinguish how this illustration has contributory bar. John any the case at bearing plaintiff certainly explo- Good all he could to prevent did night sion his house. The reсord on the shows that he February at 10:30 soon as 2, 1948, o’clock, as smelled the odor of he descended gas immediately into the cellar to make an When he investigation. hissing reached the bottom of the stairs he heard a it the elbow where he felt pipe sound tracked gas. attempted What he to do revealed escaping “Q. After testimony: you in his What then? do felt the hand out and you put your pressure you from that what did do? Did coming elbow, you it? A. I reached around stop to do try anything Q. Avere to do with you And what get rag. going A. line. Avrap around rag? Going Q. in wrapping Did succeed around it? you rag Q. A. What it? happened, prevented A. sir. Avhat No, Q. It wed first. bio first? A. Yes. up up It blowed Q. it blew A. over you up? Eight Where were when it.” top * Incidentally Majority of the three cases cited none plaintiff contributory guilty held connection was the negligence.
What more could John Good It have done? until 10:30 p.m. of February 4, 1948, that be learned that there was anything with wrong his Three gas pipe. *19 or four minutes later he was blown through a wall, and his home a jumble kindling wood charred brick. Are his because of those three rights, or four minutes’ to be thrown court- notice, out of the house as he himself was blown through cellar wall, the defendant although had ten years’ time within which to correct the situation which precipitated the tragedy at 1522 Lowrie Street?
In of all spite the Majority has said I fail to see where there is any law which can ra- justify or tionalize decision I reached, accordingly vig- dissent. orously
Thompson, Appellant, v. Goldman.