Kibele v. The City of Philadelphia

• Decision Date: 18 February 1884
• Court: Pennsylvania Supreme Court
• Parties: Kibele <I>versus</I> City of Philadelphia.

105 Pa. 41

Kibele versus City of Philadelphia.

Supreme Court of Pennsylvania.

January 14, 1884.

February 18, 1884.

January 14, 1884.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas No. 1 of Philadelphia county: of July Term, 1883, No. 13.

Alexander Simpson, Jr., for the plaintiff in error.—The city authorities were bound to exercise a reasonable degree of care and watchfulness in ascertaining the condition of its gas main and in repairing it. This they failed to do, and rely, as an excuse for negligence on want of notice of the condition of the plug. As the rotting away of the plug could have been discovered by the exercise of a reasonable degree of care on the part of the city, she is charged with constructive notice, and no actual notice was necessary. Vanderslice v. City, 7 Out., 102; Article in Albany Law Jour., Dec. 26, 1874, 401, and cases there cited: Cooley's Constitutional Limitations, *249. The long continuance of the escape of gas in this case affects the city with constructive notice. McLaughlin v. Corry, 27 P. F. S., 109: Dillon on Munic. Corp., (3d ed.) § 1017, and cases there cited. The plaintiff in error knew nothing of the escape of illuminating gas into his premises, and could not therefore be charged with contributory negligence. To bar his right of action, his negligence must be the proximate cause of the injury and not the remote cause; and it must also be such negligence as naturally would result in the exact injury which is the subject of the action. In both these respects, even if it be held that the plaintiff was negligent, the negligence fails to be of that character to debar the action. Oil City Gas Co. v. Robinson, 3 Out., 1.

Abraham M. Beitler (with him William Nelson West), for the defendant in error.—Vanderslice v. City, 7 Out., 102, decided that where an alleged defect in a sewer was "patent for a long time prior to the injury," the city will be charged with constructive notice of such defect. There, the sewer had been out of order for three years. Here, the escape of gas had been noticed for only a week prior to the accident. It is submitted that a week is not a sufficient period of time to bring this case within the rule of Vanderslice v. City.

Mr. Justice GORDON delivered the opinion of the court, February 18, 1884.

We think the evidence in this case was sufficient to require its submission to the jury. The immediate cause of the injury to the plaintiff was undoubtedly the defective gas pipe, and the material question was whether of this defect the city had either actual or constructive notice. There can be no serious question of its liability for damages to a citizen resulting from its wilful neglect in a particular of this kind. Admitting then that the main was in all respects properly constructed and secured, and this was a question for the jury, yet if the city officials did know, or ought to have known, previously to the time of the explosion, that it was in a defective condition, and failed to have it properly repaired, that would be such a default as would fix the liability of the city. But notice or knowledge will be assumed where the circumstances are such that the municipal authorities, by the exercise of proper and reasonable diligence, might have known of the defect which caused the damage complained of. McLaughlin v. The City of Corry, 27 P. F. S., 109; Fritsch v. City of Allegheny, 10 Nor., 226. In the latter case ...