Plonk v. Jessop

Opinion by

Mr. Justice Mitchell,

The plaintiff testified that when indications of a leak hi the pipe were discovered he told defendant’s workmen that they ought to fix it, they “ started to go upstairs to find the leak,” and when they came out “ they said everything was all right.” Later in the day, plaintiff smelling gas in the hall, “ lit a match the same as the plumbers did, and laid it along the pipes,” then “ got a taper and lit that and started along up the pipes, clear up to the attic,” where the explosion took place by which he was injured. The place and cause of the leak were apparently attributable to the failure of a previous gas fitter to put a cap on the end of the pipe in the attic, but the defendant’s men having seen from the rapid movement of the indicator in the meter that there was an important leak somewhere, and having left the work without having located it, yet assuring plaintiff that everything was right, there was sufficient evidence to submit to the jury of defendant’s negligence.

But the plaintiff having admitted that he knew or had heard that gas would explode if brought in contact with a light, the learned judge below entered a nonsuit on the ground of contributory negligence. In so doing he failed to give sufficient weight to the circumstances, and to the plaintiff’s explanation that he did as the plumbers did “ because I saw them hunt in the same way with matches and a taper.” The knowledge of the explosive character of gas certainly may be presumed to be general among persons who have it in their houses, and plaintiff admitted such knowledge. But how far a smell of gas indicates a leak that may safely be searched for with a match or candle, and at what point it means danger of explosion in so doing, is a question requiring judgment and some experience. Plaintiff-had seen indications of a leak, had seen it searched for by defendant’s men with matches and a light, and had then been told that everything was right. When after that he smelled gas it could not be said as a conclusion of law that he necessarily had reason to suppose he would find anything more than a leak that might be safely searched for with a light as he had seen done by defendant’s men earlier in the day. He may have been negligent in going into the attic as he did, but we think it is for a jury and not the court to say so.

Judgment reversed and procedendo awarded.