48 Ga. App. 47 | Ga. Ct. App. | 1933
1. We are of the opinion that the plaintiff sufficiently alleged in his petition that the defendant was responsible for the alleged defective installation of the valves in the meter in question, so as to charge the defendant with liability. As a matter of fact, one of the allegations is that the defendant was negligent “in putting the valves in said meter in said defective and improper manner.” The petition may fail to allege directly that there was a duty on the part of the defendant to read or inspect the meter, but it does contain a direct and positive allegation as to the manner of its installation and the defects therein, and that such installation of the valves by the defendant caused the escape of the gas and proximately caused his injury. This allegation was certainly sufficient to withstand a general demurrer on the ground that the petition failed to set out a cause of action, and .the sustaining of such demurrer and the dismissal of the petition on this ground was error.
%. The question as to whether the facts pleaded show contributory negligence on the part of a plaintiff to such an extent as will bar his recovery, and subject his petition to demurrer on that ground, is one that is always troublesome to courts of review as well as to trial courts. We recognize fully the doctrine “volenti non fit injuria,” and that where the petition itself shows facts which would charge the plaintiff with a knowledge of the risk and
In Pine Bluff Water and Light Co. v. Schneider, 62 Ark. 109 (34 S. W. 547, 33 L. R. A. 366), we find this language: “We should not hold under the facts of this case, so far as they appear, that it was negligence per se for Hammert to use a match in trying to discover the place from which the gas escaped, for that would depend upon whether he had notice that the gas was escaping in large quantities or not. If he had notice that it was present in large quantities, it was gross carelessness for him to .apply a lighted match to it. But if the quantity was small, or if there was nothing to cause a man of ordinary prudence, placed in
In Dowler v. Citizens’ Gas & Oil Co., 71 W. Va. 417 (76 S. E. 845, Ann. Cas. 1914C, 341), we find the following language in the opinion: “Another point insisted on in brief of counsel for defendant is that plaintiff’s proof shows him to have been guilty of such contributory negligence as to preclude recovery. Plaintiff admits that he could smell gas in the.privy; but notwithstanding, he lighted the match which ignited the gas. It is urged that this shows that plaintiff’s own negligence in lighting the match caused his injury. But was it not for the jury to say whether or not he was negligent? Can the court say, as matter of law, that it is negligence for one to strike a match in a room where natural gas is present in sufficient quantity to be detected by smelling it? It is a matter of common knowledge that natural gas is so volatile that it may be detected by the smell, even when so diffused with the atmosphere as not to be capable of being ignited. Therefore, just how strong the smell of natural gas would have to be in order to indicate danger by explosion is very uncertain. When plaintiff entered the privy he says he detected the smell of natural gas. But it is often detected out in the -open air, and along the streets where there happens to be a leak in the gas main, and yet there is no danger from it. And when • plaintiff closed the door he was doubtless unconscious that the volume of gas was constantly increasing in the privy because of the lack of ventilation. It can not be said, as a matter of law, that he was negligent, in view of the facts and circumstances, in attempting to light his cigar. It was, therefore, a question for the jury to determine whether or not, in striking the match, he did what no man of ordinary prudence would have done.” Certainly, if it is a question for the jury to determine as to whether a person who actually
We are not unmindful of what was said in the case of Weyman v. Maynard, 24 Ga. App. 94 (100 S. E. 25), where it was held that the plaintiff could not recover, because of the contributory negligence of a stranger who had come in to help arrest the leak, who applied a match to a connection he had made to see if gas was still escaping. The evidence in that case showed that the
In the present case the plaintiff, a plumber, was called to repair a gas-stove, and in repairing it he found that there was not a steady flow of gas to it, whereupon he went to examine the meter, which was located in a dark compartment, and lighted a candle in order to see and inspect the meter, and when he opened the door the explosion occurred. He alleged that he was where his duty called him to be and that he did not know of the dangerous and defective condition of the meter, which he alleged was leaking gas because of improper construction by the defendant. We are forced to the conclusion, after formerly writing an opinion to the contrary in this case, that we can not say as a matter of law that; under the circumstances surrounding the plaintiff, he was not in the exercise of ordinary care; and this question therefore becomes a question for determination by the jury. A clear statement of the general principle governing this matter is found in 12 R. C. L. 914, § 55. For full citation of authorities, see 29 L. R. A. 337-360; 32 L. R. A. (N. S.) 809-31; Ann. Cas. 1914C, 341. The court, therefore, erred in sustaining the general demurrer and dismissing the petition.
Judgment reversed.