Opinion
No. 21393
Decided May 1, 1929.
Negligence — Temporary toilet for workmen, erected over manhole in street — Realty salesman using shed injured by sewer gas explosion — Salesman a trespasser, not a licensee or invitee — Building not a nuisance, and maintenance not negligence per se.
ERROR to the Court of Appeals of Cuyahoga county.
For convenience the defendant in error will hereafter be alluded to as the plaintiff and the plaintiff in error as the defendant, the position they occupied in the trial court. In that court the plaintiff, Oliver Van Benshoten, instituted a suit for personal injuries, and in his petition he alleged that while the defendant was engaged in doing certain underground work in the city of Cleveland it caused to be erected a small building over a manhole in the street, wherein a large amount of gas accumulated, causing an explosion, thereby injuring the plaintiff, who was in the building at the time. The negligence alleged therein consists of allegations that the defendant was negligent in causing the erection of the building over the manhole, thereby producing an accumulation of gas in the building, in failing to warn plaintiff of the presence of the gas, and in permitting the building to remain unlocked.
The answer of the defendant contained a general denial and also specific allegations that the plaintiff's injuries were proximately caused by his own negligence. Upon the issues thus joined the cause came on for trial. At the close of the plaintiff's evidence, the defendant moved for a directed verdict. This motion was sustained by the trial court, and, following a judgment in favor of the defendant, the plaintiff prosecuted error to the Court of Appeals, which reversed the judgment upon the sole ground that the trial court erred in directing a verdict. The defendant below thereupon prosecuted error to this court.
It appears from the evidence of the plaintiff that at the time of the injury the defendant was laying an underground conduit in the street in a residential part of the city of Cleveland under a permit obtained from the city. In the prosecution of its work the company had temporarily installed a small building over a manhole communicating with a sewer about 20 feet below, for the use of its workmen as a toilet during working hours. This toilet building was 3 feet by 3 feet in width, and 7 1/2 feet high. It was covered with a roof, its sides having cracks three-eighths of an inch wide, through which gas arising from the sewer below might escape. The building was placed by the defendant in the center of the street in the morning, and removed from the street in the evening, thus remaining in the street during the working hours, and while in the street two red flags were hung near its top for the purpose of warning traffic. The door of the building was unlocked, but was secured both inside and outside by a simple device which kept the door shut even when not in use. The defendant employed a gang of from 12 to 16 workmen, who, at the time of the injury, were working about a block distant from the toilet building.
About 10 o'clock a. m. on April 29, 1925, the plaintiff, who was 42 years of age and a real estate salesman, canvassing that part of the city, parked his car in the vicinity, observed the toilet building located in the center of the street, entered the building for the purpose of using it as a urinal, and latched the door behind him. He testified that while he had had experience with natural gas he had had none with sewer gas, nor did he know that it would explode when coming in contact with a lighted match. Two of his own witnesses testified that immediately after the explosion and injury the plaintiff held a box of safety matches in his hand. One of his witnesses testified that the plaintiff told him "that he went to use the toilet and lit a cigaret." Plaintiff did not deny these statements. He testified that he did not remember smoking, nor did he recall whether or not he lit a match while he was in the toilet building. He said his recollection was pretty vague; that he "heard a rumble and a crash and the next thing I found myself on the street." Plaintiff's evidence also disclosed that the toilet building was placed on the street for the use of the employees working on the job, and for no one else. There is no evidence in the record that any of the employees of the defendant knew that plaintiff was in the building or its vicinity at the time of the explosion.
Messrs. Squire, Sanders Dempsey, Mr. Frank M. Cobb and Mr. A.E. Powell, for plaintiff in error.
Messrs. Anderson Lamb, for defendant in error.
In their opinion the Court of Appeals say that the plaintiff was "in the exercise of a simple right when he entered the shed in question, and the party maintaining the shed owed him the same duty that it owed any other who might be lawfully present." Since the building was erected by the defendant for the convenience of its workmen, and under the city's permit, it was not a nuisance, but was like any other appliance which a contractor would reasonably use in the prosecution of his work. It was not negligence per se, therefore, to place the building in the center of the street during the day-light working hours for the sole use of its working gang. Had the case been one where children of tender years had been attracted to the building and become injured in the same manner the principle of attractive nuisance might apply, and the defendant become liable, if it knew that children were accustomed to play in the vicinity of the building and that danger might result to such children from a similar use. De Groodt, Exrx., v. Skrbina, Admr., 111 Ohio St. 108, 144 N.E. 601, 38 A. L. R., 591; Harriman v. Railway Co., 45 Ohio St. 11, 12 N.E. 451, 4 Am. St. Rep., 507.
The building was not erected for the use of the public. The defendant did not know that the plaintiff was in its vicinity, consequently the plaintiff was neither an invitee nor a licensee, but a trespasser, upon the defendant's property. But even so, had the defendant known that the plaintiff intended to use the building under circumstances where ordinary care and prudence required that he should have been warned, a common-law duty or obligation might arise whereby the defendant would be required to give him warning if the defendant had reasonable cause to believe that injury might result to the plaintiff if he were not warned. In order to recover, it was necessary for the plaintiff to prove not only that the defendant owed him a duty, but that his injuries resulted from a breach of that duty.
The intervening immediate cause of the accident was plaintiff's act in lighting the match which caused the explosion. The building was erected for the sole use of the working gang; its use by the public was not contemplated. The defendant was unaware of plaintiff's presence in the vicinity — a situation giving rise to the liability in favor of children in the Harriman and Skrbina cases, supra.
There is nothing in this record disclosing a state of facts whereby an ordinarily prudent person could reasonably have anticipated or foreseen that plaintiff would use the building for a viatic purpose, that he might ignite the gas by a lighted match, or that an injury would probably result from defendant's own act. Armour Co. v. Ott, Admx., 117 Ohio St. 252, 257, 158 N.E. 189. The evidence comes wholly from the plaintiff's witnesses, and from it we are unable to perceive any duty owing by the defendant or any breach of duty committed by it.
The judgment of the Court of Appeals is reversed and that of the common pleas is affirmed.
Judgment reversed; common pleas affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS and DAY, JJ., concur.
ALLEN, J., not participating.