Ottersbach v. Philadelphia

• Decision Date: 09 April 1894
• Docket Number: 173
• Citation: 28 A. 991,161 Pa. 111
• Parties: Ottersbach, Appellant, v. Philadelphia
• Court: Pennsylvania Supreme Court

28 A. 991

161 Pa. 111

Ottersbach, Appellant, v. Philadelphia

No. 173

Supreme Court of Pennsylvania

April 9, 1894

Argued March 21, 1894

Appeal, No. 173, Jan. T., 1894, by plaintiff, Margaret Ottersbach, from judgment of C.P. No. 1, Philadelphia Co March T., 1893, No. 162, entering nonsuit. Reversed.

Trespass for death of plaintiff's son.

At the trial it appeared that, on Jan. 24, 1893, plaintiff's son, a boy about fifteen years old, was asphyxiated by illuminating gas escaping from a broken pipe into an outbuilding. The boy and his mother lived with the boy's uncle at the corner of Diamond and Palethorp streets. The uncle was the owner of the premises.

It was proven that, for about two weeks before the accident, a smell of gas, at times greater than at others, had been noticed by the uncle in this backhouse, in which there was no window. The door was closed when the boy was found.

The uncle testified that he had noticed the smell over two weeks before the accident; that on the Sunday previous thereto he and his wife had been affected by it. No complaint was made by him, however, to the city authorities. He thus testified concerning a call at the house, by a man named Gibson employed by the gas department of the city: "On Jan. 19 on Tuesday, and between nine and ten o'clock, was my time to go out collecting, and as I was going out I met him; I seen him open the street in two different places. The first I noticed of it they were smelling round the vents in the neighborhood. They were smelling there to trace it, and as I came out I told the gentleman. I says, 'Just go in that water-closet and you will find plenty of gas,' and he followed suit, and when he was in there he used those words; he says, 'Don't strike no match and don't take no candle in there or it will blow up,' and I called my wife out at the same time and I gave her notice then what the gentleman had said, and he told her the same thing, and then I says to him -- I explained the case to him, because the odor was more than bearable; I could hardly stand it. I wouldn't have complained, but he just happened to come up there. I told him then to follow it up; he says, 'I haven't got the time; I have got to go somewheres else; but,' he says, 'there will be a tracing gang sent here to-morrow' -- that was on Wednesday -- 'and they will follow that up until they find it.' I then said, 'I wish you would.' Q. You were going on to tell us what took place between you and Mr. Gibson? A. Yes, sir. I related the affair at home -- that is, my wife and myself -- and then I told him, I think, three times to attend to it. I asked them how soon it would be attended to. He said, 'I won't be in before four o'clock, but there will be a tracing gang round here to-morrow morning, because there is lots of gas around here that ought to be attended to,' and I asked him then if he thought it was illuminating gas, and he said yes. By Mr. Johnson. Q. Did the tracing gang come? A. No."

The aunt was present when Gibson called, and testified that all he said was, "We should not strike a match in the closet nor put no paper in, because it would set on fire and explode."

Plaintiff testified that she had never heard that any notice had been given not to go into the water-closet. She also testified as follows: "Q. Did you notice any odor around that place at the time? A. The gas? Q. Yes. A. Yes, sir. Q. What sort of smell was it? A. It wasn't sewer gas; it was burning gas. Q. Tell us about the smell you noticed -- how great it was and so forth? A. Well, it was for two weeks, about, that we had the smell in the water-closet, but certainly we didn't think it would do the damage that it did do, but then it was sometimes greater than other times. . . . Q. Had you noticed the smell anywhere excepting in the outhouse? A. No, only in the outhouse."

The court entered a compulsory nonsuit and subsequently refused to take it off.

Error assigned was refusal to take off nonsuit.

Judgment reversed and a procedendo awarded.

John G. Johnson, for appellant. -- The city was negligent in its action, after complaint had reached the proper authorities of the fact of an escape of illuminating gas.

There was no evidence of contributory negligence which justified the taking of the case from the jury: Rapho Twp. v. Moore, 68 Pa. 406; Allentown v. Kramer, 73 Pa. 408; Vanderslice v. City, 103 Pa. 107; McLaughlin v. Corry, 77 Pa. 109; Smith v. Boston Gas Light Co., 129 Mass. 318; Holly v. Boston Gas Light Co., 8 Gray, 125; 1 Thompson on Negligence, 110; Lanigan v. New York Gaslight Co., 71 N.Y. 29; Mose v. Gas Co., 4 F. & F. 324; Kibele v. Phila., 105 Pa. 41; Koelsch v. Phila., 152 Pa. 362.

Howard A. Davis, Charles F. Warwick with him, for appellee. -- Defendant was not negligent: Fritsch v. Allegheny, 91 I'a. 226; Rapho Twp. v. Moore, 68 Pa. 404; Sh. & Red. Neg., § 148; Otto Township v. Wolf, 106 Pa. 608; Strawbridge v....