Appeals, Nos. 163 and 167, March T., 1949, from judgment of Court of Common Pleas of Beaver County, March T., 1948, No. 50, in case of Mary Engle et al. v. Edward J. Reider et ux. Judgment affirmed.
Leonard L. Ewing, with him Reed, Ewing & Ray, for appellant.
Myron E. Rowley, with him Ralph E. Smith, Milton Selkovits and Rowley & Smith, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
Notwithstanding the tragic death in this case of plaintiff's decedent, the jury, in an action brought by the administratrix of his estate under the Wrongful Death and Survival Acts, found a verdict in favor of the original defendants, and we are constrained to hold, on plaintiff's present appeal, that the court below acted properly in refusing her motion for a new trial.
The jury found a verdict in favor of the plaintiff against the additional defendant, who, however, was decedent's employer and therefore liable to him only under the Workmen's Compensation Act; accordingly the court below entered judgment for this defendant n.o.v., and from that judgment no appeal has been taken.
The controlling facts are, briefly, as follows: Edward J. Reider and Minnie M. Reider, the original defendants, were the owners of a two-story commercial property in Rochester, Beaver County. In 1946 they had a hot-water heater installed on the second floor for the purpose of supplying hot water to the tenants. Its fuel was natural gas; it was enclosed in a small closet and, although it was provided with an opening for that purpose, it was not fitted with a vent to carry off the fumes produced by the heater when burning and which were released instead, by means of a hole cut through the ceiling of the closet, into a loft space between the ceiling of the second floor and the roof of the building. This space, 60 feet in length and 18 feet in width, was but 28 inches high at its highest point; it was a dark area without any opening to provide an exit for the gas fumes ascending from the heater below, and it thus constituted what amounted practically to a reservoir for the accumulation of the carbon monoxide gases, which are colorless, tasteless, almost odorless, and deadly upon extended inhalation. At the time the heater was installed defendants were advised by the contractor who did the work that a fresh air vent
ought to be attached to it and the contractor recommended to them a tinner for that purpose, but they made no attempt to have such a vent constructed. At different times thereafter their attention was called to the danger of the condition thus created and they were urged to have it corrected, but nothing was done.
In 1947 defendants entered into a contract with Hershel Routman, the additional defendant, for the installation by the latter of a furnace on the second floor of the property adjacent to the hot-water heater. This furnace was to be electrically controlled, and for that purpose Routman decided that the necessary connection could best be made with a wire which ran across the space above the furnace and which could be reached by going into that space through the hole above the heater in the closet. Two of Routman's employees, Joseph C. Smith and the decedent, Raymond H. Engle, worked on the job for a few days; on the day of the accident Smith left there for about an hour to return to the shop, and during his absence Engle, in order to reach the point where the splice or connection to the wire was to be made, crawled through the hole in the closet and wormed his way for a distance of some seven feet into the compressed space of the loft. When Smith returned he found Engle lying dead on the floor of the loft as a result of his having inhaled the carbon monoxide gas produced by the hot-water heater.
At the trial Routman testified that he had visited the Reider property several times before and during the installation of the furnace, had examined the premises, looked into the closet, seen the hot-water heater there and noticed there was no vent on the tank, and that he was fully aware of the resulting danger of carbon monoxide poisoning; he also testified that, according to his best recollection, he had discussed the ...