Mandel v. Wheeler

Mr. Presiding Justice Waterman delivered the opinion of the Court. The deceased being upon the premises of the defendants by their invitation, they were under obligation to use reasonable care to prevent injury to him from conditions of their place, which they knew, or ought to have known, he exercising ordinary care for his own safety. Indemaur v. Dames, L. R., 2 C. P. 311. It is the settled rule in this State that a plaintiff, to recover for personal injuries occasioned by the negligence of another, must himself have been in the exercise of ordinary care. The evidence here shows that the deceased, not in the discharge of a duty he owed to any one, went directly up to the T which burst, and while reaching up to it apparently “ to take hold of the big valve,” was injured by the explosion which at that instant occurred. There is evidence that when the deceased got off from the platform upon which he had been working, he said that he was going for a plank, but it does not appear that there was any necessity for his walking up to this T in order to get a plank; the planks were all about the west end of the basement. The testimony of the plaintiff’s witnesses is such as to show that the deceased had much warning that there was trouble in the steam pipe. One of them says: “ He (deceased) got down from the scaffold and walked right over to where the water and steam were coming out. He got near to it when it exploded. It was getting worse and worse, and the noise was getting louder and louder, and the water coming out faster and faster as he approached it.” The same witness also said: “ I heard the noise when it first started. It got louder and louder and leakier and leakier and steamier and steamier. I could see the water spouting out and could also hear it clanking in the pipes.” There is no evidence tending to show that had,the deceased remained with his co-laborer, or gone elsewhere than directly up to the T he would have been injured, and no evidence that, in order to get a plank, it was necessary for him to go where he did. Ho one save the deceased was injured. Reasonably careful1 and prudent persons do not, when exercising ordinary care, go up to steam pipes in which there is such manifest, unusual disturbance, and from which there is such apparent danger. The judgment of the Superior Court is reversed upon a finding of facts to be here made.