93 Ill. App. 194 | Ill. App. Ct. | 1901
delivered the opinion of the court.
This appeal presents two questions of controlling importance, viz.: First, does the evidence warrant a finding that there was negligence of appellant which was a proximate cause of the injury; and second, does the evidence establish negligence of appellee contributing to the injury, and hence barring a recovery. We are of opinion that the first question must be answered in the negative. The only evidence connecting appellant with the injury is, that which shows that the gas supplied through the pipes was the property of appellant, and that it owned the meters and had removed them several weeks prior to the explosion. The mere fact of the ownership of the gas would not of itself impute a liability for injury caused by its escape if appellant was in no manner at fault for such escape. The testimony of two witnesses, uncontradicted and unimpeached, established that at the time of the removal of the meters and the disconnecting of the pipe in question, the employes of appellant left it properly capped and hence safe. The evidence discloses that the unoccupied flat was left unlocked and open to the entrance of any passer-by. Upon this evidence we can not say that there is sufficient evidence to sustain the verdict, finding, as it does in effect, that appellant is liable by reason of having left the pipe uncapped or imperfectly secured. The decided weight of the evidence is to the contrary. Whatever inferences might be drawn from the fact that the assistant janitor on a Monday, which was presumably washing day of some family in the building, and was shortly after the removal of the meters, discovered escaping gas, and after that day did not observe it again, can not be treated as overcoming the positive and uncontradicted testimony of two unimpeached witnesses. The verdict is hence against the manifest weight of the evidence, and can not be permitted to stand in support of the judgment.
Upon the second proposition, we are of opinion that the evidence is not such that it should be said to show conduct of appellee which, as a matter of law, constitutes per se contributory negligence. It is true that appellee, an experienced chemist, well aware of the dangerous properties of this gas, went into a room where its presence was detected by him, and held a lighted match toward the apparent source of the escaping gas, and thereby caused the explosion. But there are other facts from which it might be concluded that in so doing there was no lack of the ordinary care exercised by reasonable-minded men. A window near the pipes was open. He might have well concluded that it was impossible for gas to collect in dangerous quantities in a room thus open. We can not say that all reasonable minds must agree that this conduct constituted contributory negligence. Hence that issue was one to be submitted to a jury. There is a line of decisions in cases somewhat like this one, where it has been held that going with a light into a room where gas is evidently collected in considerable quantity, does constitute contributory negligence, and that hence in such cases no recovery can be sustained. Of such are the following, cited and relied upon by counsel for appellant: Lanigan v. N. Y. Gas Light Co., 71 N. Y. 29; Consol. Gas Co. v. Crocker, 82 Md. 113; Oil City Gas Co. v. Robinson, 99 Pa. St. 1; Mitchell v. Stewart, 187 Pa. St. 217; Bartlett v. Boston Gas L. Co., 117 Mass. 533; McGahan v. The Indianapolis N. Gas Co., 140 Ind. 335.
But in the Lanigan case and in the Crocker case, in spite of the strong announcements of the law by the courts of review, yet the question of whether the conduct of the plaintiff constituted contributory negligence was after all left to triers of fact, in the former case a referee, and in the latter a jury. And in the Robinson case the Pennsylvania court did not hold that a recovery was necessarily barred upon the facts, but ordered a new venire. In the Mitchell case it appeared that the plaintiff knew of the dangerous condition, that he had been specifically warned against approaching the place with a light, and yet persisted in so doing to his own injury; and the court in that case sustained the action of the trial court in directing a non-suit. In the Bartlett case the Massachusetts court held that an instruction was improperly refused and another improperly given, bearing upon the question of negligence of the plaintiff, but the court did not determine the right of recovery in the case.
In the McGahan case the trial court sustained a demurrer to a narr. which alleged the negligence of the gas company, defendant, in permitting the gas to escape, and an explosion, and exercise of due care by the plaintiff, who was injured by the explosion, but failed to allege the cause of the explosion of the escaping gas. The Supreme Court of Indiana, in reviewing, said that the cause of the explosion might have been an act of plaintiff constituting contributory negligence, and affirmed the action of the court below in sustaining the demurrer. Where it has been held as a matter of law that negligence of a plaintiff barred' recovery in those cases, it has been in cases where the apparently reckless act of carrying a light into a room which seemed to be filled with inflammable gas, was unrelieved by any of the surrounding circumstances.
There is another line of decisions in which it has been held that one injured by an explosion of escaping gas, caused by carrying a light to it, is not necessarily barred from a recovery for the negligence of the one who has wrongfully allowed it to escape. Among these are the following: Louisville Gas Co. v. Gutenkuntz, 82 Ky. 432; Schmeer v. Gas Light Co., 147 N. Y. 529; Plonk v. Jessop, 178 Pa. St. 71.
In the case of Schmeer v. Gas Light Co., the facts were that the plaintiff, a boy of eighteen years, discovered gas leaking in the building and was about to proceed with a lamp to learn .the cause, when another tenant of the building warned him that to take a lamp might be dangerous. Whereupon he said he could take a candle, as he had seen plumbers .use a candle to search for a leak of gas. He proceeded with a lighted candle to the floor aboye (not occupied by him) and applied the light to one pipe and found no leak. Going further along the hallway he came to a barrel, climbed upon it with his lighted candle, and an explosion followed which caused his death. . The Hew York court, upon review of the evidence in the case, said :
“ Sometimes it is extremely dangerous to take a light to discover the location of a gas leak, and sometimes it is not, depending upon various circumstances; among others, upon the extent of the leak, the size of the inclosure where located, and the length of time the leak has existed. The plaintiff’s intestate, a boy of eighteen, took the candle, with the statement that he had seen gas men take a candle to find a leak, and it is a fact that they do so upon some occasions. The whole case as to the contributory negligence of the plaintiff’s intestate should be submitted to the proper judges of fact.”
In Plonk v. Jessop, the plaintiff, smelling gas in the hall of a building, lighted a match “ the same as plumbers do,” and laid it along the pipes, and then got a taper, and having lighted it, went along the pipes up to an attic, where an explosion occurred by which he was injured. The Pennsylvania court, reviewing the facts of that case, said:
“ But the plaintiff having admitted that he knew or has heard that gas would explode if brought in contact with a light, the learned judge below entered a non-suit on the ground of contributory negligence. In so doing he failed to give sufficient weight to the circumstances, and to the plaintiff’s explanation that he did as the plumbers did, 1 because I saw them hunt in the same way with matches and a taper.’ 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. Plaintiff had seen indications of a leak, had seen it searched for by defendant’s men with matches and a light, and had then been told that everything was right. When after that he smelled gas it could not be said as a conclusion of law that he necessarily had reason to suppose he would find anything more than a leak that might be safely searched for with a light as he had seen done by defendant’s men earlier in the day. He may have been negligent in going into the attic as he did, but we think it is for a jury and not the court to say so.”
It may be observed that the distinction between the two classes of decisions lies in the fact that in the one there are no surrounding circumstances from which the person injured might reasonably have inferred that he might safely search for the leaking gas with a light, while in the other cases such relieving circumstances are to be found.
If a jury had found that there was here in the conduct of appellee contributory negligence, in view of his experience as a chemist and in spite of the fact of the open window, we are not prepared to say that we would hold such finding to be against the weight of the evidence. Neither can we say that the verdict, finding in effect that in view of all these facts and circumstances he was not guilty of a lack of ordinary care, is against the manifest weight of the evidence. Eeasonable men of fair intelligence might differ upon the conclusion. It was a question peculiarly within the province of the jury and for their determination. Chicago & N. W. R. R. Co. v. Simon, 160 Ill. 648; I. C. R. R. Co. v. Anderson, 184 Ill. 294; Barnes v. Western Wheel Works, 84 Ill. App. 646.
We think that it can not be held that appellee was a trespasser while entering the unoccupied flat, so as to defeat his right to recover for negligence of appellant, if appellant were shown to have been negligent. The escaping gas having reached and penetrated his own apartment, he had the right to go to other parts of the building to prevent the difficulty. In no event would his right, or lack of it, to enter the unoccupied flat without permission of the landlord, affect his relation to appellant and his right to a recovery if appellant was negligent and he was not.
Complaint is made of,the admission in evidence of photographs of appellee, taken soon after the injury, and shown by testimony to be correct representations of him as he appeared. We are of opinion that the evidence was competent. If the photographs showed the condition or appearance of appellee as it actually was, then the fact that such condition or appearance was calculated to awaken sympathy in the minds of the jury does not render the evidence incompetent. The test is the correctness of the photographs, and they were shown to be correct. Whether the bandages upon the appellee when the photographs were taken so far covered and hid his person as to make the photographs worthless as evidence of his condition at that time, was a matter largely within the discretion of the trial judge, who saw the photographs. We are unable to say that the learned judge erred in this behalf. The fifth of the refused instructions, tendered bv counsel for appellant, was properly refused. It was sufficiently covered by other instructions given. The various «¡instructions relating to notice to appellant of the condition of the pipe, i. e., that it was uncapped, were properly refused. The jury were properly informed by other instructions that if the appellant had left the pipe capped and that the leak was not caused by any fault of the appellant, then there could be no recovery. This instruction made any further instruction as to notice unnecessary.
Because the verdict is against the manifest weight of the evidence as to any negligence of appellant causing the injury, the judgment is reversed and the cause is remanded.