Ottersbach v. Philadelphia , 161 Pa. 111 ( 1894 )

Opinion by

Mr. Chief Justice Sterrett,

It was admitted that the death of plaintiff’s minor son resulted from asphyxia caused by inhaling illuminating gas, which, as the testimony tends to show, escaped from defendant’s broken gas pipe in the street at the corner of Diamond and Palethorp streets. Without referring in detail to the uncontradicted testimony tending to prove that the proper city authorities were duly notified of the fact that gas was escaping at that point, and that they neglected for several days to locate the leak and replace the broken pipe,‘etc., it is sufficient to say that the evidence introduced by the plaintiff, if believed by the jury, presented a case of inexcusable and protracted neglect of duty, on the part of defendant, resulting, as the jury would have been warranted in finding, in the death of plaintiff’s son. The duty of promptly locating and stopping the leak was one that devolved solely on the proper authorities of the city. No one else had any right to interfere with the gas pipe, or open the street for the purpose of locating or stopping the leak. That this was their duty, and theirs alone, is a proposition too plain to need either argument or citation of authorities. It cannot be seriously contended that there was any lack of competent and sufficient proof of defendant’s negligence, as the proximate cause of the boy’s death, etc., to carry the case to the jury on that question of fact.

But it is contended that plaintiff and her son were both guilty of contributory negligence, and on that ground, if no other, the learned court was warranted in refusing to take off the judgment.of nonsuit. We cannot assent to this proposition. Conceding, for the sake of argument only, that there is some evidence of such contributory negligence, an examination of the testimony has satisfied us that it is not of such a character as warranted the court in virtually declaring, as matter of law, that either the plaintiff or her son was guilty of negligence which contributed to the death of the latter. In view of all the evidence, we think the case involved questions of fact which were clearly for the exclusive consideration of the jury, and to them it should have been submitted with proper instructions as to the law applicable thereto.

Judgment reversed and a procedendo awarded.