130 A. 428 | Pa. | 1925
Plaintiffs' son, John Lawrence, aged fifteen, with his companions, was coasting on Clearview Street, Scranton, *218 on Christmas Eve. They gathered about a manhole in the street to await the arrival of another boy. While at the manhole, John struck a match on the iron cover to light a cigarette. An explosion of gas immediately followed, the boys were thrown in different directions, and the cover of the manhole was blown in the air, falling on John, so injuring him that he died shortly after.
The presence of gas was accounted for through a leak in a gas main some distance away. It followed a waterline to a pit constructed by the Scranton Gas Water Company to house a water-meter. The pit, approximately five feet square and four feet deep, was sunk into the street about ten feet from the sidewalk, and its manhole was covered with a circular iron lid. An employee of the company visited it daily to examine the meter. For a month or so before the accident he continually found quantities of gas collected in the hole; at times he was compelled to remove the cover to permit the gas to escape before entering to read the meter. The odor of gas from the manhole was also observed by others for some weeks prior to the accident, and from its scent it was known to be illuminating gas. In an action against the city, a compulsory nonsuit was granted by the court below.
This appeal raises some interesting legal questions. We start with this basic principle of law which, to a large extent, governs the legal liability, if any, of the defendant:
Municipalities as governmental agencies have a discretionary power to abate certain kinds of nuisances, but they become civilly liable if they permit a nuisance to exist on their own property to the damage of others, or if damage results from the continued existence of a known nuisance on a public highway that makes it unsafe for travel: Scranton v. Catterson,
Generally, to fasten liability on a municipality, it must have had notice of the tortious condition complained of for a sufficient length of time before the accident to have either cured the defect or prevented the injury: North Manheim Twp. v. Arnold,
Plaintiff's evidence was ample to go to the jury on the question of constructive notice, not only from the testimony of the inspector of the water-meter, but also from that of another witness who testified positively that he smelled gas coming from the manhole when he was sixty feet from it. There can be no question on this phase of the case, it was for the jury, and the court below was not in doubt on that point. *220
Admitting the preceding premise, the next problem is, Does it appear the city knew of the dangerous character of the substance collecting and escaping within the streets? If we assume that appellant's story of the case is correct, that the illuminating gas came from the pipes of the company occupying the highways of the city, we then have this proposition: The municipality permits its highways to be used for the purpose of transporting a highly dangerous substance. When such authority is given, inasmuch as the city knows that there will be a joint use of the streets by the traveling public and the transportation of the dangerous substance, may the municipality contend it did not know the dangerous qualities of the matter transported? Will it not be presumed to know? Had it then the right to assume that the use of the street for the purpose would be in a reasonable and prudent manner, with safe contrivances and appliances?
This approaches very closely to what has been said regarding the use of streets by electric light companies, telephone companies, and other concerns employing dangerous agencies or appliances likely to become dangerous by coming in contact with such dangerous agency. In such cases, we have held that it was the duty of the municipality to exercise careful supervision over its streets and to see that the construction and maintenance of electric wires suspended above them were in a reasonably safe condition: Mooney v. Luzerne Borough,
While the city might, within reasonable limits, presume that the instrumentality using the highway adopts and maintains proper facilities (City of Warsaw v. Dunlap,
But it is urged that, to support plaintiff's case, the court must assume, or the jury must find as a fact, that the gas was communicated to the manhole as indicated, and it was the gas of the agency occupying the streets. This, it is asserted, does not produce certainty of liability, in view of the well-known characteristics of gas. It is not such a violent assumption as would appear at first thought. We have not hesitated to so declare in other cases. See Koelsch v. The Phila. Co.,
"The primary duty of keeping its streets in travelable condition is on the city": Harvey v. Chester,
Did the city authorities know the combustible nature of gas? In other jurisdictions, courts have taken judicial notice of the qualities of artificial and natural gas. They are dangerous agencies, highly explosive and combustible: Jamieson v. Indiana Natural Gas Oil Co.,
Was the boy, when he struck the match at the manhole, guilty of negligence as argued by appellee? He could smell the gas, and while his knowledge of its dangerous character was for the jury, his lighting the match under the circumstances, says defendant, made the act a case for the court. We may concede a part of this statement as indicated in Plonk v. Jessop, supra. Escaping gas is dangerous, but the point at which it becomes dangerous is not a well-known fact. One may approach to within a certain distance from a leak with a light in safety, but, in approaching, that point is reached where the mixture of gas and air becomes dangerous. The location of this point is difficult to determine. Gas should be confined, the leak large enough to create some pressure, and the mixture about perfect. We have held that one may go into a cellar or attic with a lighted match, lamp, or lighted taper hunting along a gas line for a leak, and not be guilty of contributory negligence: Plonk v. Jessop, supra. The common practice of discovering gas leaks is by the use of a match or candle. In Plonk v. Jessop, supra, 77, plaintiff, who knew gas would explode if brought in contact with a light, used a match or burning taper to discover *224 a gas leak, going into the cellar for that purpose. The court said "the knowledge of the explosive character of gas certainly may be presumed to be general among persons who have it in their houses, and plaintiff admitted such knowledge. But how far a smell of gas indicates a leak that may safely be searched for with a match or candle, and at what point it means danger of explosion in so doing, is a question requiring judgment and some experience," and that was for the jury. So it may be said as to this boy, assuming he knew gas was present, his knowledge of the danger point around the manhole where he struck his match, or his contributory negligence, is a question of fact for the jury.
It is not contributory negligence per se to use a match or lighted candle in trying to discover a gas leak, or to enter with a light a cellar or other closed place into which gas is escaping: City Gas Co. v. Webb,
The court below seemed to be of the opinion that gas in the highway was not the proximate cause of the injury. We cannot agree to this, otherwise this court has been in error in deciding similar cases. After a careful consideration of the case, the judgment of the court below should be reversed; the question of the city's negligence and knowledge both as to the presence of gas and its destructive character were matters for the jury and should be submitted to that tribunal for consideration.
Judgment reversed with a venire facias de novo. *225