Consolidated Gas Co. v. Crocker

31 L.R.A. 785, 33 A. 423, 82 Md. 113, 1895 Md. LEXIS 99

Opinion

McSherry, J.,

delivered the opinion of the Court.

The only questions we have before us on this appeal are those which arise in consequence of the rejection by the trial Court of the prayers presented by the defendant for instructions to the jury, and those which grow out of the granting by the Court of three instructions of its own. The case is one founded in alleged negligence. The fundamental principles which must govern its decision are thoroughly settled and established. To apply those principles correctly is all that is required.

The defendant below, the appellant here, is a gas company. It manufactures and supplies gas for illuminating purposes. The gas is transmitted through mains and pipes underneath the surface of streets into houses and elsewhere. The plaintiff below, the appellee here, leased and occupied certain premises in Baltimore City. In those premises he conducted a saloon. He moved into them on or about the twentieth of November, 1891. At that time the odor of escaping gas was very perceptible in the cellar of the house. When an employee of the gas company was notified that the gas was escaping and accumulating in the cellar, he stated that another employee of the company would be sent to remove the old meter and to replace it with a new one, as was customary whenever there was a change in the occupants of premises ; and when the attention of the employee who did remove the old meter was called to this odor he stated that he guessed the new meter would remedy .the matter. In fact, however, this did not furnish a remedy, and gas continued to flow into the cellar to such an extent that it was necessary to keep the door closed at the head of the stairway leading from the cellar into the dining-room. There was evidence tending to show that the gas escaped from a main which ran under and parallel to the sidewalk, and that thus escaping it penetrated the front wall of the premises occupied by the plaintiff. In the cellar there was a gasoline stove used for cooking oysters. On the evening of December the third, 1891, Mrs. Staenglen, an employee of the appellee, went into the cellar for the purpose of frying some oysters. She closed the door behind her at the head of the cellar stairway. She took with her a lighted coal oil lamp and placed it on a bracket near the top of the cellar, and then proceeded to ignite the gasoline in the stove. The cellar had been opened but once in the preceding twenty-four hours, and then only for a brief period. She struck several matches, but there being apparently some water in the cup of the stove the gasoline did not vaporize and burn. Mrs. Bryant, an acquaintance of Mrs. Staenglen, then entered the cellar, but left the door leading to the dining-room open. In the dining-room and just opposite the door leading into the cellar two gas jets were burning. According to the testimony of Mrs. Staenglen she threw a basin of water containing a few spoonfuls of gasoline on the coal pile, and in about two minutes after again lighting the gasoline stove, which immediately went out, she happened to look in the direction of the steps leading up to the dining-room and there she saw a sheet of bluish flame which was instantly followed by an explosion. This explosion occurred in about ten minutes after Mrs. Staenglen had entered the cellar with the lighted coal oil lamp. This lamp continued to burn during the whole time Mrs. Staenglen was in the cellar. The force of the explosion was so great that it threw Mrs. Bryant out of the front cellar door and did considerable damage to the building. The coal oil lamp suspended in the cellar was uninjured, but the globes on the gas jets in the dining-room were shattered. According to the testimony of Mrs. Bryant, who was called as a witness for the defendant, Mrs. Staenglen emptied the gasoline out of the stove into a basin and then replenished the stove and threw the basin full of gasoline on the coal pile. Sh¿ further stated that after this Mrs. Staenglen lit several matches to start the fire in the stove and that shortly after the explosion occurred. It was further shown that after the explosion had taken place several persons entered the cellar and found a blaze proceeding apparently from burning oil in the coal pile.

By rejecting the defendant’s first prayer the Court refused to rule that in law the act of entering the cellar with the lighted coal oil lamp, under the circumstances stated, was such a glaring act of contributory negligence contributing to the injury complained of as to preclude a recovery by the plaintiff. Had it been a concessum in the case, or had it even been clear from the evidence that the lighted coal oil lamp carried into the cellar caused the explosion, there would have been some foundation for imputing contributory negligence to the plaintiffs employee in carrying it there. Not only does it not appear that the carrying of the lamp into the cellar actually caused the explosion, but the defendant, on the contrary, strenuously insists that there was no explosion of gas at all, but that the explosion proceeded from gasoline. When large quantities of gas have escaped into a building and have commingled with the air therein and thus formed a highly explosive compound, and this condition is known to a person entering such building, it is obviously in law a grossly negligent act to enter with a lighted candle or lamp, or to strike a match after entering; because according to known and unvarying laws an explosion or a suddenly liberated mechanical energy resulting from the instantaneous combustion of the inflammable compound when brought in contact with a flame, will inevitably follow. And when under these conditions an explosion does instantly result the moment a flame is brought, in contact with such a compound of gas and atmosphere,, the fact that the flame caused the combustion and the consequent and simultaneous explosion is beyond reasonable dispute or question. The deliberate or the careless application of a flame to such an explosive compound is clearly an act of negligence so unequivocally contributing to the production of the injury that no recovery can be had by the person guilty of br chargeable with that act of concurrent negligence. And this is precisely what was decided in Lanigan v. N. Y. Gas Co., 71 N. Y. 29; Oil City Gas Co. v. Robinson, 99 Pa. St. 1. In these cases the explosion instantly followed upon a light being brought in contact with the gas and there could be no possible dispute that the bringing of the light in contact with the gas caused the explosion. But where there is not such a connection between the act of entering the house with a lighted lamp and the explosion of the gas as to establish with certainty and to the exclusion of any other reasonable hypothesis the relation of cause and effect, the question as to what did cause the explosion is for the jury to solve under proper instructions from the Court. When, therefore, as here, more than ten minutes intervened between the time the lamp was taken into the cellar and the time that the subsequent explosion-occurred ; and when, as here, the lamp itself was uninjured, it would be impossible for the Court to assume that the-lighted lamp caused the explosion, and to rule as a conclusion of law that the plaintiff’s employee was guilty of contributory negligence in taking the lamp into the cellar. And this is true also with respect to the lighting of the matches to ignite the gasoline in the stove. Assuming, as must be done in discussing this prayer, that all the evidence adduced, by the plaintiff was true, then at least two minutes intervened between the period of time when the last match was struck and the stove was lighted and extinguished for the last time, and the period when the explosion took place, and there was obviously, therefore, no evidence to show that the explosion proceeded from these matches or from the stove. If, then, the evidence failed to show affirmatively and without dispute that the explosion resulted from the lighted lamp or from the burning matches being brought in contact with the gas, it would have been improper for the Court to say as a legal conclusion that the taking of the lighted lamp into the cellar or the striking of the matches there, was an act of contributory negligence directly contributing to the production of the injuiy complained of, because unless the explosion did result from the one or the other causing a combustion, then neither the one nor the other contributed to the explosion. If there is no evidence to show that a particular act of imputed negligence did actually concur in producing an injury, then there is no evidence that the doing of that act was in itself contributory negligence, and it would be clearly erroneous to ascribe to it that character or quality. To justify a Court in pronouncing a given act such an act of contributory negligence as to defeat a recovery it must be a distinct, prominent and decisive fact about which ordinary minds would not differ, because where the nature and attributes of the act relied on to show negligence contributing to the injury can only be correctly determined by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not for the Court to determine its quality as matter of law. Cook v. Balto. Trac. Co., 80 Md. 558. Under the conditions we have stated and in view of the failure of the evidence to show that the lamp or the matches, to the exclusion of every other reasonably probable cause, occasioned the ignition or combustión that produced the explosion, the Court was right in declining to rule as requested in the defendant’s first prayer, that the plaintiff had been guilty of such pronounced negligence directly contributing to the injury as to preclude a recovery.

The defendant’s second prayer was also properly rejected. It asked the Court to instruct the jury that the plaintiff had offered no legally sufficient evidence of negligence on the part of the defendant. Assuming the truth of the evidence adduced by the plaintiff, it was clearly negligence on the part of the defendant to allow gas to escape from its pipes after receiving notice that a leak existed, “Whilst no-absolute standard of duty in dealing with such dangerous agencies can be prescribed, it is safe to say in general terms, that every reasonable precaution suggested by experience, and the known perils of the subject ought to be taken. This would require in the case of a gas company not only that its pipes and fittings should be of such materials and workmanship, and laid in the ground with such skill and care as to provide against the escape of gas therefrom when new, but that such system of inspection should be maintained as would insure reasonable promptness in the detection of all leaks that might occur from the deterioration of the material of the pipes, or from any other cause within the circumspection of men of ordinary skill in the business.” Koelsch v. Philadelphia Co., 152 Pa. 355; S. C. 18, L. R. A. 759. A neglect or a failure to use such precautions would be clearly negligent. It cannot be doubted, if the evidence adduced by the plaintiff be credited, that the least attention or diligence on the part of the company’s employees would have apprised them of the escape of gas into the street and through the walls of the plaintiff’s house. The defendant’s employee had been notified of the escape of gas. He had promised to remedy it when the new meter should be placed in position, but he failed to search for or to discover whence, in fact, the leaking gas proceeded. He seems to have assumed that the change in the meter would obviate the trouble, but he made no search, nor did the other employee who put the new meter in position endeavor to locate the leak. It was clearly negligence on the part of these employees not to make some effort to discover the location of the defect which caused the leak. They were aware of the leak, and that was notice to the company. It then became obligatory on the company to use reasonable efforts in a reasonable time to ascertain where the leak was and to stop it. Morse v. Hastings Gas Co., 4 Fost. & Fin. 324. If instead of doing this the company’s employees chose to assume that a change in the meter would remedy the defect, though confessedly they did not know whether it would or not, they obviously did not discharge the duty incumbent upon them, and their negligence in this particular was the negligence of the company. When a gas company is made aware, as in this case, that large quantities of gas are escaping into a building, it becomes its plain duty to use reasonable diligence to discover and to stop the leak. It cannot discharge that duty by assuming without knowing that the leak proceeds from one source, when, in fact, it proceeds from a totally different source which could have been discovered by proper inspection. This rule requires nothing unreasonable — it does not require that the company shall keep up a constant inspection all along its lines, without reference to the existence or non-existence of a probable cause for the occurrence of leaks or escapes of gas — but it does require that when notice of the existence of a leak has been given to a company, the company shall use reasonable care to discover the cause of the leak and appropriate means to remedy it. This doctrine is not in conflict with the principle laid down in Hutchinson v. Boston Gas Co., 122. Mass. 219, and other cases of a kindred character. “There the escape of gas complained of was the result of an overwhelming calamity, that had laid a great part of the city of Boston in ashes and fractured and severed the company’s pipes in so many places that all the force it could employ was insufficient to guard against all possible consequences of the escape of gas without at once shutting off the supply from the whole city, and this it was excused from doing on the ground that more mischief would result therefrom than was likely to result from the neglect so to do.” Koelsch v. Philadelphia Co., supra.

The escape of gas from the defendant’s main was, under the circumstances stated, after it had received notice that gas was escaping into the plaintiff’s house, and after it had failed or neglected to use reasonable care or proper inspection to discover the location of the leak and to stop it, some evidence of negligence, and the Court would not have been •justified in withdrawing the question of negligence from the consideration of the jury. We arfe not called on to go farther or to lay down a broader rule than this in the pending case, and we are not to be understood as doing so, though it has been held by Courts of high authority that the escape of gas from the mains underneath the surface of a public street, unless explained, is prima facie evidence of some neglect on the part of a gas company. The case of Smith v. Boston Gaslight Co., 129 Mass. 318, is an illustration of this doctrine.

The defendant’s third and fifth rejected prayers were fully covered by the Court’s instructions, and the appellant has, therefore, no reason to complain of the refusal of the Court to grant them.

We find no errors in the instructions given by the Court. There were two opposite theories presented by the evidence. The plaintiff founded his case upon the theory that the gas which escaped into the cellar and was confined-there whilst the doors leading into the cellar were closed, rose when Mrs. Bryant entered the cellar and omitted to close the door behind her, and in a few moments came in contact with the .lights at the head of the cellar steps and then exploded. It was, according to the testimony of Mrs-. Staenglen, at the head or top of these steps that she saw°the bluish flame spread out at the moment of the explosion. A slat partition across the cellar was partially blown down towards the street and away from the steps, as though the force had been applied from the side next to the cellar steps — the side nearest the lighted gas jets at the head of the stairway. On the other hand assuming, first, that the explosion was a gas explosion, it was insisted that the plaintiff was guilty of contributory negligence; and, secondly, denying that it was a gas explosio'n, it was contended that the explosion was caused by" gasoline. The first contention we have already considered. It is not necessary to state the evidence relied on by the appellant to support the second alternative. Suffice it to say that both theories were fairly submitted to the jury by the instructions given by the learned and accomplished trial Judge, and that upon both theories the law was accurately and clearly announced. It became then solely the province of the jury to determine the facts ; and if they found, as they were required to find before returning a verdict for the plaintiff, that the gas escaped by reason of the negligence of the defendant; that the explosion was a gas explosion, and that the act of Mrs. Staenglen in going into the cellar with a lighted lamp and striking matches there, was under all the circumstances, such conduct as a person of ordinary prudence and care would have pursued, they were warranted in finding a verdict for the plaintiff If, on the contrary, they found that the explosion was a gasoline explosion, or that being a gas explosion, Mrs. Staenglen had been guilty of negligence in entering the cellar with a lighted lamp or in striking matches there, and that either of these acts caused the explosion, the plaintiff was not entitled to recover. The second instruction correctly defined where the burden of proof rested.

(Decided December 6th, 1895.)

As we find no error in the rulings of the trial Court, its judgment must be affirmed.

Judgment affirmed with costs above and below.