Schmeer v. Gas Light Co.

We think it was error to non-suit the plaintiff upon this proof. There was, in our judgment, a question for the jury to determine, the' question being whether, upon all the evidence, the defendant company had been guilty of negligence which caused the death of the deceased youth.

A portion of the gas which escaped through the pipes in the third story hall found its way into the premises of the women tenants, and occasioned them annoyance from its odor. The deceased, upon hearing of the difficulty, and in order to aid the two women in its removal, endeavored to find the location of the leak for the purpose of stopping it with some temporary means until the next day. He was acting in their behalf and for their benefit, although the means he used were his own. The women were not consumers of the gas, and had made no

The question which should have been left to the jury was whether the company had failed to use such reasonable precautions as might properly be exacted of it before turning on the gas, or permitting it to be turned on by some third person.

The company in some respects occupied the position of a public corporation. It was by statute bound to furnish gas upon the written application of the owner or occupant of any building or premises within one hundred feet of any main laid down by it, subject to such just and proper regulations as it might adojit as a means of securing payment for its gas and safety in its supply. It manufactured and furnished an agent for illuminating jiurposes which might become a most dangerous onej liable to explode and to injure human beings and property. While this gas remained on the premises of the manufacturer, or while it was being conducted through its own pipes to different parts of. the city, there can be no doubt that the company was bound to exercise vigilance to prevent'injury to third parties from the dangerous qualities of the gas. The question is where its responsibility ended. The claim is made on its behalf here that such responsibility had certainly determined before this explosion occurred. It is urged that it had no responsibility for putting the piping in the house, as it was done by third parties under the employment of the owner; that it had no charge of such piping after it was fitted in the building; that the gas was turned on by third parties without consultation with or knowledge on the part of the officers of the company, which simply was accustomed to and in this case did permit any one to turn on the gas after plans had been submitted to it and a meter had been provided by it upon application.

These circumstances might furnish a good answer to the

Was there any negligent failure on the part of the defendant company to do what was reasonably prudent for the purpose of insuring safety to those women and to those who were roused by them to make efforts to discover the source of

The defendant urges that it would be most unreasonable to impose upon it the duty of knowing when gas was to be turned on in every building in the city where it was to be used and to inspect the piping immediately prior to the turning on of the gas. It is asserted such a duty would be almost impossible of performance and that every reasonable requirement is met by the obligation to inspect upon notice and request. But the company by the adoption of the custom already spoken of in regard to the delivery of the plans of the piping to it entirely did away with the necessity of notifying it and left it to the discretion of the owner or applicant at what time or by whom the gas might be turned on. It has by its own act relieved itself, so far as it could, of any obligation to make inspection before the gas shall be turned on. We do not see the impracticability of inspection as is alleged by defendant or its great expense. If when a meter should be applied for in an apartment house like this in order to take the defendant’s gas, the defendant should at the time of sending it send a proper inspector to inspect the piping, there would not be much difficulty in that case. The inspection here spoken of would not include the examination of pipes under floors or covered by plastering; no ripping up of work already done in the way of flooring and of lath and plastering could reasonably be required. A fair examination of the piping which was disclosed and the ends of tubes coming out into the open spaces through which the gas might penetrate into other quarters than where it was applied for, would certainly be all that could ever be reasonably called for. We do not say that even this must be done as a legal proposition. It is a question for the jury upon the issue of negligence.

The suggestion that the company had no right to enter upon the premises for that purpose we do not regard as well

The defendant, after the delivery of the plans and having thus obtained a general knowledge of the character of the building, must have known of the separate stores and apartments, and that separate meters were required. The-agents of the defendant saw that by the plans the pipes were placed so as-to distribute the gas to other portions of the building than those from which application had been so far made. Was it or not a reasonable matter to ask of the defendant that before permitting its gas to be turned into the building for the purpose of supplying those who had applied for it, the company should, through its own servants, make some examination of the state of the piping leading to the other quarters, to the end that it might say with reasonable certainty such piping was in proper condition to hold the gas, and not to let it escape upon the premises of those who had not applied for and did not want it ? Or had the company done all that could reasonably have been required of it by entering into the understanding as to the plans, and that their delivery should be regarded as equivalent to a certificate ? This presents, we think, a fair question of fact and not one of law.

Here the defendant is engaged in manufacturing and selling an article which has become so universally used for illuminating purposes as to be regarded almost as an essential of city life. Having manufactured it, the law compels the company to furnish it to an owner or occupant on certain terms. It is bound not only in the fulfillment of the purpose of its existence but bj affirmative provisions of law to deliver the gas into the buildings of others.' In making that delivery it is not an insurer, but is simply bound (in such a case as this) to that degree of care which the nature of the article it deals in and the consequences to be apprehended from an accident reasonably call for. Nor do we assume to say that when once

The other ground of defense, as to the contributory negligence of the plaintiff’s intestate, we do not think should be taken from the jury. Sometimes it is extremely dangerous to take a light to discover the location of a gas leak and sometimes it is not, depending upon various circumstances, among others, upon the extent of the leak, the size of the inclosure where located and the length of time the leak has existed. The plaintiff’s intestate, a boy of eighteen, took the candle with the statement that he had seen gas men take a candle to find a leak, and it is a fact that they do so upon some occasions. The whole case as to the contributory negligence of the plaintiff’s intestate should be submitted to the proper judges of fact.

O’Brien, Bartlett and Haight, JJ., concur; Finch and Gray, JJ., dissent; Andrews, Oh. J., not sitting.

Judgment reversed.