Brown v. New York Gas Light Co.

1 Ant. N.P. Cas. 351

• Court: The Superior Court of the City of New York and Buffalo
• Decided: April 15, 1850
• Status: Published

Opinion

Sandford, J.

I do not think the responsibility of the defendants so general as is contended for by the plaintiff’s counsel; they are undoubtedly bound to furnish pipes sufficiently strong to stand all lawful use which might be made of the public streets through which they passed; but, if broken by any unlawful or improper use of the streets, they are not responsible. Heavy piles of bricks, removed from old buildings, may become an unlawful use of the streets in this view; and so, also, the careless dumping of heavy building materials, occasioning sudden and mischievous concussions. If the pipes were broken from either of these causes in excess, the defendants would not be liable; but if from the ordinary and customary use of the streets, it would be otherwise.

The cause of the injury is, however, conjectural: there is no positive proof of its character. Whatever may have been the cause, however, it is clear that when the defendants were notified of it, it became their duty to remedy the evil with all speed, and to give sufficient notice of the impending danger.

If they have failed in these particulars, they are liable, independent of every other consideration, unless the plaintiff has been himself equally remiss. If he received notice of the danger, and was aware of the inflammable and explosive character of the gas, and still heedlessly encountered it, he is without redress.

(1)

The jury found verdict for plaintiff, $1000.

Anthon, for plaintiff.

Brady, for defendants.

The charge of the learned judge, in this case, is marked with his usual caution and discretion. He has properly confined himself to the precise point disclosed by the evidence. The jury probably rendered their verdict on the omission to repair with promptness, when defendant was notified of the existence of the mischief. The general and peculiar responsibilities of a gas company, arising from the nature of the article supplied for consumption, must be disclosed practically as cases occur.

In the case of Holding v. The Liverpool Gas Company, (5 N. Y. Legal Observer, 77,) it was attempted to make the company liable, because the company had no stop-cook on the outside of the meter, to enable them to turn off the gas entirely from the interior of the house, when required. It appeared that other companies had the entire command of the gas, by means of such machinery, and it may be fairly inferred, from the facts disclosed, that the injury to the plaintiff’s house, by the explosion of the gas, which proceeded from some wilful destruction of the interior pipes by a burglar, would not have occurred had the company turned off the gas effectually by such a 1 contrivance.

'The learned judge (Creswell) non-suited the plaintiff at the trial, holding that this was not a duty cast by law upon the defendant. Upon an application to the court for a new trial, 0. J. Tindal remarked, that on the part of the plaintiff, it was contended that it was the duty of the defendant, on notice by any tenant that the supply of gas was no longer wanted," to turn off the gas completely from the house; that they had no right to introduce the gas into the house after such notice; and that, if an outer stop-cock in the street was absolutely necessary for that purpose, it was their duty to have provided such stop-cock accordingly. On looking at the act, under which this company was formed, no such direction appears to have been given to the company by the legislature, though it appeared that a different company had been formed in the same town, and that such company had used an outer stop-cock in the same way, but they had no obligation, as it appears to us, to do so; and, as the legislature is silent on this point, the common law would impose no precise duty on the defendants, or any other duty than that which is expressed in the doctrine generally, of using proper and sufficient care in the supply of gas.

It is no easy matter to lay down general rules, defining the liabilities of companies or individuals introducing new and dangerous agents, for private emolument, into populous cities. It is, therefore, unreasonable to expect a description of them in an act of incorporation. The view, taken by the learned judge, seems altogether inadmissible. The liabilities must grow out of the subject matter, and must be peculiar to it, and it is the duty of those who introduce a dangerous agent, and derive emolument from it, to understand it, and provide all the safe-guards which science may from time to time develop. The outer stop-cock was, in this case, so obvious a protection, and being in addition in actual use, there seems to have been no apology for its omission, and the mischief being traced to this as'a cause, the liability of the defendants seems to admit of no doubt.

This, it must be conceded, is a subject of great interest in this day of development, when the most powerful elements of nature are made subservient to the comfort of the human family; and one plain rule must at least he insisted upon, that there must be no lagging behind the progress of the age, in the application of all scientific or mechanical guards for individual safety. The common law affords, on this head, a perfectly safe rule, when it declares that he who puts in action any thing which he cannot control, must answer for all the consequences. Guille v. Swan, 19 Johns. 383. Learne v. Bray, 3 East, 595. This leads to the affirmative rule, that where an agent so introduced, is controllable by care, attention, or science, he who receives the emolument must take the responsibility.