Appeals, Nos. 44 and 45, Jan. T., 1955, from judgments of Court of Common Pleas of Lackawanna County, May T., 1950, Nos. 277 and 273, in cases of Ruth Schon, Admrx., Estate of Herman Schon, deceased v. Scranton-Springbrook Water Service Company and Sweeney Brothers; and Walter Laggan v. Same. Judgments affirmed.
Paul A. McGlone, with him Frank J. McDonnell and Gomer W. Morgan, for appellants.
James E. O'Brien, with him Robert E. O'Brien, J. Desmond Kennedy and Robert T. Gownley, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
These two cases were argued together and will be disposed of in one opinion, there being one question of law in both.
The Scranton-Springbrook Water Service Company has its principal place of business in Scranton, Lackawanna County, Pennsylvania, and on the date of the happening of the accident here involved was engaged in the manufacture of artificial gas in that city.
Sweeney Brothers, a corporation, also of Lackawanna County, was engaged to perform certain construction work at the Scranton-Springbrook plant. A compulsory non-suit was entered as to it. Sweeney Brothers engaged the Standard Iron Works as a subcontractor to erect an iron staircase, and Walter Laggan and Herman Schon were employes of the latter.
While these two employes of the sub-contractor were standing on a platform approximately six feet above the ground, and operating an acetylene torch, an explosion occurred, causing injuries to both employes, as a result of which Schon died.
Scranton-Springbrook maintained a gas-oil tank, buried about ten feet below the surface of the ground and underneath the stairway landing upon which the decedent and Laggan were using the acetylene torch. The capacity of the tank was 12,000 gallons but it was only one-third full at the time of the accident. From it a vent approximately six inches in diameter extended several inches above the surface of the ground. The vent pipe had not been capped by defendant, but plaintiff had thrown a corrugated iron sheet over it. There was ample evidence that the explosion occurred through fumes from the buried gasoline tank. The negligence alleged was the failure of the Scranton-Springbrook Water Service Company to warn of the existence of the buried gas-oil tank and
of the hazards involved, and its failure to maintain the tank properly. Verdicts were obtained by the respective plaintiffs upon which judgments were entered, and the defendant appeals because of the refusal of the court below to grant judgments n.o.v. Scranton-Springbrook, defendant, contends: (1) that the plaintiffs did not prove that it had failed to give warning of the existence of a possibly dangerous condition upon the premises; and (2) that they failed to meet the burden of proof ...