Allegheny Heating Co. v. Rohan , 118 Pa. 223 ( 1888 )

Opinion,

Mr. Justice Green :

In no point of view is it possible to sustain the verdict and judgment in this case. The learned court below in the charge to the jury said: “You must be satisfied that the escape of that gas was the result of the negligence of this defendant company through its servants. There seems to be no evidence to the contrary, that this business was conducted in the ordinary, prudent, careful way that such work is done according to the best lights which persons engaged in that business possessed, and that there was no escape of gas beyond what necessarily or ordinarily resulted from the transaction of the business in the mode in which it was done here, which seemingly was done as I have said, according to the best lights these parties possessed. But it is for you to say whether that was a negligent act upon the part of the company or its servants.” As a matter of course if there was no evidence to prove negligence on the part of the company or its agents, it was error to tell the jury that it was for them to decide whether there was negligence or not. If there was no evidence to prove negligence, it was not for the jury, but for the court to decide the case, by a specific instruction to return a verdict for the defendant. No principle of the law is more familiar or more deeply rooted in our system of jurisprudence than this. It would be a mere affectation to cite the authorities. Having most carefully read and studied every particle of the testimony, we are bound to say that the court was entirely correct in saying that there was no evidence to prove negligence of the defendant. On the contrary it was affirmatively and positively proved that the appliances used in making the test were of the best and most approved kind, and such as were in common and constant use for that purpose. John Bell, a witness for the plaintiff, being asked: “ Q. Do you know the condition of the plug, was it put in properly?” answered : “ Yes sir, to the best of my belief it was: they used all precautions necessary.” All the defendant’s testimony was to the same effect and that a person of great experience and capacity for this kind of work was specially employed by the defendant to conduct the operations. Against all this evidence there is not a scrap of testimony to prove negligence either in the appliances used or in the selection of the persons to do the work.

That there was some escape of gas where the test was applied proves nothing in support of a charge of negligence. It was for the very purpose of discovering whether gas could escape that the test was applied. It would have been negligence not to apply the test, and the defendant was strictly in the line of its duty when it did so. The plaintiff admits that he heard the gas escaping, which was precisely what was to be expected. But the mere escape of the gas inflicted no injury. It was the explosion that did the mischief, and as to the cause of this, there is an absolute concurrence of testimony on both sides. The plaintiff testifies that McGinty, a fellow workman who stood a few feet from him, told him that he struck a match to light his pipe, and the explosion instantly followed. The plaintiff’s physician, examined on his behalf, testified that the plaintiff told him that the injury was caused by McGinty lighting a match. He was asked: “ Q. Did you hear tins man (plaintiff) say anything with reference to what caused the injury ? A. I did. Q. What did you hear him say ? A. He said it had originated from McGinty lighting a match. Q. Did he charge McGinty with it? A. He did bitterly: said it was McGinty’s fault all the way through.” McGinty himself was called by the plaintiff and he, also, swore that he struck the match and nearly lost his life over it. Other witnesses testified to the same fact, so that it was an absolutely undisputed fact, proved on both sides ; and it was simply fatal to the plaintiff’s case. It was also proved by several of the defendant’s witnesses that notice was given to these very men only a few minutes before the explosion that they must not smoke. Some of the plaintiff’s witnesses who were at remote points said they did not hear the notice, which is merely negative and goes for nothing, and McGinty said no notice was given; but it is quite immaterial, as the case does not depend upon the giving or omitting to give notice. The injury was directly caused by a clear and undoubted act of negligence of a fellow workman, and, even if the plaintiff were entitled to recover upon other grounds, this alone would prevent a recovery.

Judgment reversed.