63 Pa. Super. 124 | Pa. Super. Ct. | 1916
Opinion by
It was most essential for the plaintiff’s case that some negligent act of the defendant, which caused his injury, be established. He cannot recover for the mere happening of an accident and whatever rules of law may be invoked governing the conduct or duty of persons under given conditions of'fact the person wishing to be benefited by the enforcement of such rules must bring himself within the conditions to which the rules apply: Huey v. Gahlenbeck, 121 Pa. 238, and Stearns v. Ontario Spinning Co., 184 Pa. 519. The plaintiff was using a permissive pathway which ran along the tracks of the Philadelphia and Reading Railway Company. Under these tracks, at a depth of four feet, and running through the permissive pathway at right angles, were two lines of pipe used by defendants as discharge pipes for exhaust steam and water condensed from steam. They emptied into a marsh a short distance from the pathway. The plaintiff passed over this way at 4 o’clock going to his work and found no signs of any break or other defect in it. He returned at 11 o’clock when, as he states, he fell into a hole, sprained his ankle and scalded his leg. Nowhere in his testimony does he fix with any
But . appellant urges with much stress that the question as to the location of the accident was for the jury; but even if this were correct we are of the opinion that this action cannot be sustained. This accident occurred'
We do not agree that the use made of the pipes was inherently dangerous. It was a lawful construction in a lawful place. In our cities we have miles of steam pipes under the ground conveying steam to heat public and private dwellings. Such use and the construction employed are not of themselves inherently dangerous. They only become dangerous through improper construction or when a pipe springs a leak and is not repaired in due time. In this respect they are like gas, ■water and sewer pipes, telegraph and electric conduits out of repair. They become dangerous agencies by reason of neglect after proper notice to those whose duty it is to keep them in repair. There is no evidence of improper construction in this case. The defendant, as the occupier of premises subjected to a permissive pathway, if liable at all, would not be liable under the facts as. here presented from any viewpoint.
The assignments of error are overruled and the judgment is affirmed.