Merrick, J.
This is an action of tort, brought by the plaintiff, an infant of the age of nine years, to recover compensation for damages alleged to have been sustained by her in consequence of the negligence of the defendants in suffering their pipes to be and remain out of repair, whereby the gas contained in them escaped and inflicted upon her the injury complained of. Under our present system of pleading, an action of tort is sufficiently comprehensive to embrace all the cases in which a remedy was formerly afforded, either by an action of trespass or an action of the case. An action of tort may therefore now be supported by proof of facts which would have been sufficient to maintain either of those actions. St. 1852, c. 312, § 1.
But it is equally apparent, both from the plaintiff’s declaration and from the facts and circumstances stated in the report, that no trespass has been committed upon her. All the evidence reported shows that the injury complained of, and for which she contends that the defendants are responsible, was not the immediate result of any act done or committed by them, or by any of their servants. The point in controversy at the trial was, whether it was not caused by their negligence or want of ordinary care. The distinction is obvious and well known. An injury is considered immediate, and therefore a trespass, only when it is directly occasioned by, and is not merely a consequence resulting from the act complained of. “ If a person pour water on my land, the injury is immediate; but if he stop up a watercourse on his own land, or if he place a spout on his own building, in consequence of which water afterwards runs therefrom into my land, the injury is consequential, and will not render the act itself a trespass.” 1 Chit. Pl (6th Amer. ed.) [131]*131146. The defendants lawfully laid down their pipes in the public street, and filled them with gas. If they failed to discharge their duty in regard to its distribution, and negligently suffered it to escape, they were liable therefor to other parties for all consequential damages, and might be proceeded against for the recovery of compensation, in an action in the nature of an action of the case, but not as trespassers, in an action of trespass. This being the ground and limitation of the responsibility of the defendants, it is manifest that the plaintiff’s first and second prayers for instructions were not applicable to the case, and were therefore rightly rejected.
It is not necessary to consider, particularly and in detail, the further instructions which were desired by the plaintiff’s counsel. The propositions contained in them are all covered and embraced in the instructions which were actually given to the jury.
The defendants being authorized to lay down their pipes, and to convey gas in and through them, under the surface of the public streets, to various parts Of the city, it is undoubtedly their duty to conduct their whole business, in all its branches, and in every particular, with ordinary prudence and care. No exact legal definition of these words, which will embrace all their meaning and be precisely applicable to every possible case, can be given. That is to say, there is no such thing in existence as an absolute standard of ordinary care and prudence, to which the conduct of individuals in each particular instance can be brought, and by which it can be compared and tested. Gare and diligence should always vary according to the exigencies which require vigilance and attention, conforming in amount and degree to the particular circumstances under which they are to be exerted. But it must be equal to the occasion on which it is to be used, and is always to be judged of, as the jury were in this case accurately advised, “ according to the subject matter, the force and danger of the material under the defendants’ charge, and the circumstances of the case.”
As this action is founded upon the alleged omission of the defendants to discharge their duty in keeping their pipes in a sound and safe condition for the transmission and distribution [132]*132of gas, it was necessary for the plaintiff, in order to maintain it, to show that they failed, in this respect, to exercise due and ordinary care. The burden of proof was upon her to establish this failure as a fact. Adams v. Carlisle, 21 Pick. 146. White v. Winnissimmet Co. 7 Cush. 155. 2 Greenl. Ev. § 473..
It was also incumbent on her to prove that she herself used ordinary care for her own protection against the noxious influence of the gas. She had no right to expose herself carelessly or wilfully to its injurious effects, and thereby make the defendants responsible for the mischievous consequences resulting from such exposure. It was said by Lord Ellenborough that “ a party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right.” Butterfield v. Forrester, 11 East, 60. The case in which (he rule of law was thus stated has often been referred to by this court with approbation, and the rights of parties determined according to the doctrine considered there to be established. Smith v. Smith, 2 Pick. 621. Adams v. Carlisle and White v. Winnissimmet Co., above cited.
Nor does it make any difference that the plaintiff is a minor. She was under the care of her father, who had the custody of her person, and was responsible for her safety. It was his duty to watch over her, guard her from danger, and provide for her welfare, and it was hers to submit to his government and control. She was entitled to the benefit of his superintendence and protection, and was consequently subject to any disadvantages resulting from the exercise of that parental authority which it was both his right and duty to exert. Any want of ordinary care therefore, on his part, is attributable to her, in the same degree as if she were wholly acting for herself. And for this reason the defendants were properly allowed to show any conduct on his part, indicating a want of ordinary care in adopting suitable precautions against the hurtful effect of the gas after it was discovered to be penetrating and pervading the house where they resided. It was for the jury to consider whether there was not a manifest want of prudence in remaining in the house after it [133]*133became known to its inmates that it was being filled with the gas which was escaping from the leak in the pipes. And it was their province also to decide whether the immediate communication to the officers or agents of the gas company that such a leak had occurred was not a necessary, or at least a reasonable measure of precaution, of which those who were liable to suffer from inhaling a noxious substance ought to have availed themselves. In this view, it was competent for the defendants to offer proof of the conduct of the plaintiff and her father, that the jury might have the means of determining whether she had not herself neglected to use ordinary care in seeldng relief, or resorting to expedients which might readily have been availed of for her own protection and security.
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Merrick, J.
This is an action of tort, brought by the plaintiff, an infant of the age of nine years, to recover compensation for damages alleged to have been sustained by her in consequence of the negligence of the defendants in suffering their pipes to be and remain out of repair, whereby the gas contained in them escaped and inflicted upon her the injury complained of. Under our present system of pleading, an action of tort is sufficiently comprehensive to embrace all the cases in which a remedy was formerly afforded, either by an action of trespass or an action of the case. An action of tort may therefore now be supported by proof of facts which would have been sufficient to maintain either of those actions. St. 1852, c. 312, § 1.
But it is equally apparent, both from the plaintiff’s declaration and from the facts and circumstances stated in the report, that no trespass has been committed upon her. All the evidence reported shows that the injury complained of, and for which she contends that the defendants are responsible, was not the immediate result of any act done or committed by them, or by any of their servants. The point in controversy at the trial was, whether it was not caused by their negligence or want of ordinary care. The distinction is obvious and well known. An injury is considered immediate, and therefore a trespass, only when it is directly occasioned by, and is not merely a consequence resulting from the act complained of. “ If a person pour water on my land, the injury is immediate; but if he stop up a watercourse on his own land, or if he place a spout on his own building, in consequence of which water afterwards runs therefrom into my land, the injury is consequential, and will not render the act itself a trespass.” 1 Chit. Pl (6th Amer. ed.) [131]*131146. The defendants lawfully laid down their pipes in the public street, and filled them with gas. If they failed to discharge their duty in regard to its distribution, and negligently suffered it to escape, they were liable therefor to other parties for all consequential damages, and might be proceeded against for the recovery of compensation, in an action in the nature of an action of the case, but not as trespassers, in an action of trespass. This being the ground and limitation of the responsibility of the defendants, it is manifest that the plaintiff’s first and second prayers for instructions were not applicable to the case, and were therefore rightly rejected.
It is not necessary to consider, particularly and in detail, the further instructions which were desired by the plaintiff’s counsel. The propositions contained in them are all covered and embraced in the instructions which were actually given to the jury.
The defendants being authorized to lay down their pipes, and to convey gas in and through them, under the surface of the public streets, to various parts Of the city, it is undoubtedly their duty to conduct their whole business, in all its branches, and in every particular, with ordinary prudence and care. No exact legal definition of these words, which will embrace all their meaning and be precisely applicable to every possible case, can be given. That is to say, there is no such thing in existence as an absolute standard of ordinary care and prudence, to which the conduct of individuals in each particular instance can be brought, and by which it can be compared and tested. Gare and diligence should always vary according to the exigencies which require vigilance and attention, conforming in amount and degree to the particular circumstances under which they are to be exerted. But it must be equal to the occasion on which it is to be used, and is always to be judged of, as the jury were in this case accurately advised, “ according to the subject matter, the force and danger of the material under the defendants’ charge, and the circumstances of the case.”
As this action is founded upon the alleged omission of the defendants to discharge their duty in keeping their pipes in a sound and safe condition for the transmission and distribution [132]*132of gas, it was necessary for the plaintiff, in order to maintain it, to show that they failed, in this respect, to exercise due and ordinary care. The burden of proof was upon her to establish this failure as a fact. Adams v. Carlisle, 21 Pick. 146. White v. Winnissimmet Co. 7 Cush. 155. 2 Greenl. Ev. § 473..
It was also incumbent on her to prove that she herself used ordinary care for her own protection against the noxious influence of the gas. She had no right to expose herself carelessly or wilfully to its injurious effects, and thereby make the defendants responsible for the mischievous consequences resulting from such exposure. It was said by Lord Ellenborough that “ a party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right.” Butterfield v. Forrester, 11 East, 60. The case in which (he rule of law was thus stated has often been referred to by this court with approbation, and the rights of parties determined according to the doctrine considered there to be established. Smith v. Smith, 2 Pick. 621. Adams v. Carlisle and White v. Winnissimmet Co., above cited.
Nor does it make any difference that the plaintiff is a minor. She was under the care of her father, who had the custody of her person, and was responsible for her safety. It was his duty to watch over her, guard her from danger, and provide for her welfare, and it was hers to submit to his government and control. She was entitled to the benefit of his superintendence and protection, and was consequently subject to any disadvantages resulting from the exercise of that parental authority which it was both his right and duty to exert. Any want of ordinary care therefore, on his part, is attributable to her, in the same degree as if she were wholly acting for herself. And for this reason the defendants were properly allowed to show any conduct on his part, indicating a want of ordinary care in adopting suitable precautions against the hurtful effect of the gas after it was discovered to be penetrating and pervading the house where they resided. It was for the jury to consider whether there was not a manifest want of prudence in remaining in the house after it [133]*133became known to its inmates that it was being filled with the gas which was escaping from the leak in the pipes. And it was their province also to decide whether the immediate communication to the officers or agents of the gas company that such a leak had occurred was not a necessary, or at least a reasonable measure of precaution, of which those who were liable to suffer from inhaling a noxious substance ought to have availed themselves. In this view, it was competent for the defendants to offer proof of the conduct of the plaintiff and her father, that the jury might have the means of determining whether she had not herself neglected to use ordinary care in seeldng relief, or resorting to expedients which might readily have been availed of for her own protection and security.
In the course of their defence, the defendants called Johnson, one of their clerks, as a witness; and having first obtained his testimony as to what was actually done by them, or by persons in their employment, after the fact of the leak came to their knowledge, they proposed further to inquire of him, as tending to show due diligence on their part, what was the system of the company in regard to complaints of leaks, how they were usually treated, and what was the established course of proceeding in applying remedies and making needful repairs on the part of their officers, and by their employees and servants. This inquiry was objected to by the plaintiff; but the objection was overruled, and the evidence admitted. And, under the particular circumstances of the case, we think the ruling was correct, and that the evidence was properly allowed to be submitted to the jury. Indeed, upon the broad and general question of due diligence, it seems indispensable to an intelligent and correct determination. The defendants, under their charter, were in the enjoyment of a great and peculiar privilege, that of supplying the means of light to all parts of the city. This devolved upon them a corresponding degree of responsibility in the conduct of their business, and in the preservation of every part of their apparatus from defects by which the public at large might be subjected to great inconvenience, and particular individuals might also be exposed to imminent peril and danger in respect [134]*134both to their property and their lives. They were therefore under the highest degree of obligation to be at all times in a state of the most ample preparation to meet, with all reasonable' promptitude and dispatch, whatever exigency might occur requiring their attention. But it is manifestly impossible that' they should have had at their service, at every moment and at every point of exposure, an adequate force to overcome a sudden fracture of their pipes, or any other casual and unexpected obstacle in the conduct of their affairs in the shortest possible time. All that they can reasonably be required to do is to afford ample facilities to all parties interested to make communications to them, to institute and maintain an efficient system of oversight and superintendence, and to be prepared with a sufficient force, ready to be put in action, and fully competent to supply and furnish a prompt remedy for all such accidents, defects and interruptions in the conduct of their affairs, as, from experience, and the character and peculiarity of their works, there was any reasonable ground to anticipate might occur. To know, therefore, whether due diligence has been exerted in any particular instance, it is necessary to know what is their general system, and what are the means of relief at their command, and within their control. If the system is all right, and all due preparation has been made in advance, and the force which can be commanded is applied in a proper manner to the reparation of a break in the pipes, or correction of any disturbance in the regular operation of their business, they cannot be held to have failed in the exercise of ordinary care, even though it should happen that, owing to the occurrence of several interruptions at leaks at the same moment of time, through an extraordinary state of the weather, or other unforeseen causes, a particular defect should fail to be overcome with the same promptitude and dispatch that it might be under other and more favorable circumstances. It was for this purpose, as the ruling of the presiding judge is to be understood, that the testimony of Johnson, objected to by the plaintiff, was admitted. It was not allowed for the purpose of showing that the company exerted the same degree of diligence in this as they did in other like instances [135]*135nor was it ruled that they would be exonerated from responsibility on the occasion complained of by the plaintiff, if they acted up to the standard which they had themselves established as the rule of ordinary diligence. If this had been the object of the evidence it ought to have been rejected. But upon the more broad and general ground of exhibiting their system and plan of action, the means provided for conducting the great enterprise confided to their management and control, the evidence proposed seems to be peculiarly fit and appropriate, if indeed it ought not to be regarded as absolutely indispensable. Without it, it is difficult to see how, amidst contradictory statements and conflicting proofs, the jury could determine, with any confidence in the correctness of their conclusions, whether the defendants were supine and negligent, or acted with the vigor and efficiency demanded by the rule requiring the exercise of ordinary care and prudence.
The several rulings and instructions of the presiding judge, which were objected to by the plaintiff, appearing to us to have been all accurate and correct, judgment must be entered upon the verdict for the defendants.