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German-American Insurance v. Standard Gaslight Co.

70 N.Y.S. 384 Court N.Y. Sup. Ct. English

Delivered by Me ADAM, J.

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p. 384
(34 Misc. Rep. 594.)
GERMAN-AMERICAN INS. CO. v. STANDARD GASLIGHT CO.
(Supreme Court, Trial Term, New York County.
April, 1901.)

Headnote

Insurance—Subrogation op Insurer.
A workman was sent by a gas company to place a drop light over the desk of a consumer without charge. After the joh was completed, the smell of escaping gas was discovered, and the workman returned to find the leak, and applied a lighted match to the pipe, causing a fire, whereby the property of the consumer was destroyed. Held, to show negligence rendering the company liable to the consumer, to which right an insurer of consumer, on payment of the loss, was subrogated.
Action by the German-American Insurance" Company against the Standard Gaslight Company, plaintiff claiming a right to recover
p. 385
for injuries doné to the property of Theodore Seiz, which was ini sured by .plaintiff, and alleged to have been destroyed by negligence of defendant. Judgment for plaintiff.
William D. Murray, for plaintiff.
Goodwin, Thompson & Vanderpoel, for defendant.

The only question reserved at the trial was whether there was sufficient evidence to establish negligence on the part of defendant, so as to make it liable for the fire which occurred at the premises of the insured, Theodore Seiz, at No. 30 West 125th street, November 25, 1898. Seiz wanted a drop light put on his desk in the store, which • contained a stock of pictures and frames. The gas company, which supplied the insured with gas, undertook to do the work, and sent William H. Kavanagh, a workman in its employ, to carry it out. He went to work, made the connections, and left the premises. After the workman departed, there was a strong smell of leaking gas. He came back to the store within a short time, and the insured then told him there was a strong smell of gas, and asked him to look over the work. Kavanagh lighted a match,' and applied it to the gas pipe, whereupon a flame issued from the pipe, and caused the fire, which damaged the insured to the extent of $1,000. No neglect is imputable to the insured. The injury was caused solely by the act of the workman. The defendant undertook the work without compensation, and claims, therefore, that its liability was merely that of a gratuitous bailee, and that, to entitle the plaintiff to recover, gross negligence on the part of the defendant must be proved. Whatever technical relation existed between the parties respecting this particular job, the defendant was bound to exercise the care which the nature of the work required. Gas is explosive, and leaks in pipes are apt to cause the ignition of escaping gas, and produce serious fires, and a higher degree of care and vigilance is required in dealing with a dangerous agency than in the ordinary affairs of life or business which involve little or no risk of injury to persons or propertv. Koelsch v. Philadelphia Co., 152 Pa. 355 , 25 Atl. 522 , 18 L. R. A. 759 ; Schmeer v. Gaslight Co., 147 N. Y. 529 , 42 N. E. 202 , 30 L. R. A. 653 ; Anderson v. Gaslight Co., 17 Misc. Rep. 625 , 40 N. Y. Supp. 671 ; Gas-Fuel Co. v. Andrews, 50 Ohio St. 695 , 35 N. E. 1059 , 29 L. R. A. 337 . The defendant sent its workman, for whose acts it is responsible, to do the work in question. His attention was called to a smell of gas. He knew" that “sand holes” might exist in the pipe, for such things, he testified, were not uncommon. Yet he placed a lighted match over the pipe, thus igniting the escaping gas, and causing the resultant damage. Such conduct on the part of one knowing the consequenceS-was negligence, and renders the defendant liable. See Burrows v. Coke Co., L. R. 5 Exch. 67. In Lannen v. Gaslight Co., 46 Barb. 264 , affirmed 44 N. Y. 459 , the defendant, being informed that gas-was escaping in the cellar of an occupied house, sent its employé to ascertain the location of the leak, and the person so sent lit a match,, and caused an explosion, which injured tiie plaintiff. It was hell

p. 386
that, if the employé was incompetent or ignorant, it was negligence to select Mm, and that, if competent, the defendant was liable for his careless performance of duty. Although it is apparent in this case that the work wMch the defendant undertook to do was for the mutual benefit of defendant and its customer, the insured, and that the defendant was, therefore, bound to use ordinary care (Newhall v. Paige, 10 Gray, 366 ; Quinn v. Power, 87 N. Y. 535 , 41 Am. Rep. 392 ), it is, unnecessary in this instance to apply that standard to defendant’s conduct, for the act of its employé was grossly negligent. Lannen v. Gaslight Co., supra. “The properties of the illuminating gas in ordinary use, its inflammable and explosive character, are well understood, and every person of mature years and ordinary intelligence cannot be presumed to be ignorant of them.” Lanigan v. Gaslight Co., 71 N. Y. 33 . The determination by a lighted match of whether a leak exists, or its location, in a gas pipe adjoining inflammable material in a well-stocked picture store, is not only not a safe method, but one fraught with great danger. The plaintiff paid the insured $500 in satisfaction of its liability for one-half the damage caused by the fire. Thereupon the insured assigned to the plaintiff all his rights against the defendant to the extent of such payment, and under a clause in the policy the plaintiff became subrogated to the rights of the insured. There must be judgment for plaintiff.

Judgment for plaintiff.

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