Brown v. Smith

• Citation: 141 N.W. 2,121 Minn. 165
• Court: Supreme Court of Minnesota (US)
• Decision Date: 18 April 1913
• Parties: BROWN v. SMITH et al.

121 Minn. 165

141 N.W. 2

BROWN

v.SMITH et al.

Supreme Court of Minnesota.

April 18, 1913.

Appeal from District Court, Hennepin County; Charles S. Jelley, Judge.

Action by A. D. Brown against John N. Smith and others. From an order directing a verdict for defendants, plaintiff appeals. Reversed.

Syllabus by the Court

Plaintiff was a stationary engineer, and spent his time in the engine room of a six-story building. Defendants were plumbers, and were employed by the first-story tenant to change the plumbing on the first floor. In so doing they left in the space between the first floor and the basement ceiling, and immediately over plaintiff's place of work, an open sewer pipe connected with a main sewer. There was an opening in the basement ceiling at this point through which the air might circle down from the open sewer pipe to the basement. Some time thereafter plaintiff grew gradually ill and was finally obliged to quit work. Other witnesses detected bad air in the vicinity of this open pipe. Plaintiff's physician could find nothing to account for his illness. He testified that he knew the man was poisoned, but could not find the cause. After 20 months this open pipe was discovered and was at once closed. The physician then treated plaintiff for sewer air poisoning, and his health gradually improved. This physician gave the opinion that sewer air would fully account for plaintiff's illness. Another physician, who examined the premises and heard the testimony, testified that under the conditions existing sufficient sewer air might come into the basement room to cause plaintiff's illness, and that, in view of the absence of any other cause, sewer air from this sewer pipe was the reasonably probable cause thereof. It is held:

1. Under the facts stated, defendants are liable to plaintiff in damages if they negligently left this sewer pipe open, and if plaintiff's illness was caused by sewer gas emitted therefrom. The question of their negligence should have been submitted to the jury.

2. The question whether plaintiff's illness was caused by breathing sewer gas or sewer air emitted from this sewer pipe should have been submitted to the jury. Francis B. Hart, of Minneapolis, for appellant.

Benton, Molyneaux & Morley, of Minneapolis, for respondents.

HALLAM, J.

Plaintiff was a stationary engineer in the Albion Hotel on Nicollet avenue in Minneapolis. This hotel occupied the upper stories of a six-story building. The first and second stories were occupied by a five and ten cent store. The engine room was in the basement. A water-closet stood on the first floor immediately over the place in the engine room where plaintiff was stationed and where he spent most of his time. In March, 1910, the proprietors of the five and ten cent store were desirous of moving this water-closet to the basement. Defendants are plumbers, and they were employed for that purpose. They removed the closet, and in so doing left the sewer pipe open. This pipe was directly connected with the Nicollet avenue sewer, which at this point is a small sewer. This pipe was between the floor of the store and the ceiling of the basement. The opening in the pipe was immediately over plaintiff. The ceiling of the basement was of tile. There was an opening in the ceiling at this point, where a pipe went through from the basement to the first floor. At this opening there was a space between the pipe and the tiling sufficient to permit the air to circle down through, from the place where the open pipe was located, to the engine room beneath.

Plaintiff brings this action against defendants on the theory that sewer gas or sewer air escaped from this open sewer pipe and made its way down into the furnace room through this opening in the ceiling, causing injury to his health, and that the act or omission of leaving this pipe open was negligence, for which defendants are liable to him in damages.

It appears that in summer plaintiff spent but a small part of his time in the furnace room, and this was true of the summer of 1910. In the fall and winter and early spring he spent most of his time there. Plaintiff was at this time about 42 years of age. He testified that he had always been a healthy man. He further testified that in the winter of 1910-11 he commenced to get thin and run down in health. By April or May he got so he could not perform his duties, and secured a nephew to fire up for him. In August he said he ‘got clear down,’ but did some of his work until the middle of August. After that time he was not there at all for two or three months. He came back some time in October, but did not do much of anything, except to give directions as to what was to be done, and was not able to work until the 26th of December, 1911. There is evidence that during this time he was troubled with indigestion, loss of appetite, nerves and muscles all gone, headache all the time, and was dazed so that he could not go out alone.

In November, 1911, he discovered this open pipe and reported it to defendants, who at once caused it to be closed. Since that time he has grown gradually better and has gained 30 pounds in weight.

Another witness, Sischo, who worked with plaintiff at times,...