Schmeer v. Gas Light Co. — 48 N.Y. St. Rep. 6

Majority

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Daniel Schmeer, Adm’r, Resp’t, v. The Gas Light Company of Syracuse, Impl’d, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed September 30, 1892.)

Headnote

Negligence—Gas companies.

Plaintiff’s intestate was fatally injured by an explosion of gas which escaped from an open pipe in the third floor of a new building. Upon request and after receiving a plan of the pipes in said building, the defendant had furnished a meter to the occupants of the lower floor, who had it' put in by a plumber employed by them, and who turned on the gas. The court charged that the plumber was not an agent of defendant, and it was not responsible for his negligence; but also charged that it was its duty to use reasonable care and diligence to prevent the gas from injuring persons by inhaling or explosion, and left it to the jury to say whether it ought not to have promulgated and insisted on compliance with a rule or regulation requiring any one who turned on the gas on such an occasion to examine the outlets at the different places where the meters were to be put on and see whether they were properly closed. Held, error; that defendant was not charged by the statute with any duty toward the protection of the occupants against the negligence of the agents of the owner or occupants.

Appeal by the defendant, The Gas Light Company of Syracuse, from a judgment entered in Onondaga county, October 29, 1890, upon a verdict against it for $2,000; also from an order denying a motion on the minutes for a new trial.

The action is based upon negligence. Both defendants are charged with it, but the jury found in favor of defendant Leahey.

Martin A. Knapp and Edwin Nottingham, for app’lt; Louis Marshall, for resp’t.

On the 19th April, 1889, Daniel Schmeer, Jr., the plaintiff’s intestate, was fatally injured by an explosion of illuminating gas in a building in Syracuse owned by George Young. The

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deceased lived with the plaintiff, his father, in apartments in the second story of the building, and in the evening of the day in. question gas was discovered to be escaping in the third story. The' attention of the deceased was called to it, and he went partly upstairs and then returned and said, “ I will get a light, and we will find the leak and fix it until morning.” Then, as Mrs. Ripple, & witness for plaintiff and one of the tenants in the third story, testifies, “ Mrs. Bordner says, ‘Don’t take no light.’ I repeated, ‘ Don’t take no lamp, you will set us afire.’ He said, ‘ I wont take a lamp, that will explode; I will take a candle, I have seen them test-pipes with a candle, I have seen it done.’ ” He then got a candle and went up stairs and the accident happened. It was afterwards'discovered that the end of a gas pipe, that had been carried to the hall in the third story for the purpose of there attaching a meter, was open.

The building was a new three story brick block. In the first, story were a double store and a single one. In each of the other stories there were three apartments or sets of rooms adapted for separate use. The owner employed one Tiley, a gas fitter and plumber of the city, to put in the gas pipes throughout the building, one of the provisions of his contract being: “ Put the joints together in red lead, all pipes to be capped, proven tight and caps left on.” The pipes were so arranged that there could be separate meters for each store and apartment. An horizontal pipe was placed in the cellar in connection with the pipe coming from the street, and from this horizontal pipe risers were carried up in the partitions and let into the halls in the second and third stories and there the ends were capped or plugged, or designed to be, until meters should be attached for the use of the tenants.

On 29th March, 1889, Mr. Young applied to the defendant, The Gas Light Company, for a service pipe into the building, and soon after the application it was put in by the company and led from the main of the company in the street to the inside of the cellar wall. It was conceded at the trial that this service pipe “ was of proper size, properly put in and left in proper condition, with the gas shut off.” A shut-off cock, by which the gas could be turned on or off from the buildings, was placed in this pipe at the curbstone, and access was had to this stop-cock by means of a kind of key which was operated from the surface of the street through a round iron box having a cover which was fastened. The pipes in the building were connected with this service pipe by Tiley a few days before the accident.

On the 18th April, Yinney & Krause, the occupants of the-double store, applied to the gas company for a meter. The company declined to furnish it until they had received from Mr. Tiley the plans of the gas system of the building. These plans were furnished by Tiley the forepart of April 19th, and then a meter was sent by the company to Yinney & Krause. The defendant Lealiey was a plumber apparently in the employ of Yinney & Krause, and he or his employees attached the meter to the horizontal pipe in the cellar by means of a branch or riser entirely separate from the risers that went to the stories above. , This being

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done, he or his men turned,the gas on at the stop-cock in the street. This operated not only to send gas through the meter of Yinney & Krause, but also through the horizontal pipe in the cellar and up the risers that had been carried to the second and third stories for the accommodation of meters to be thereafter placed there. The escape followed at the locality of the accident.

The gas company in the course of its business allowed plumbers who put in meters that were sent by it to a building for use to turn on the gas at the completion of their work. The plumbers had keys or instruments of their own with which they did it. When meters were put in for the first time, it was not the custom, of the company to make the connections. That was done by plumbers in the employ of Those who wanted to use the gas.

The evidence seems to be undisputed that when plans were furnished to the gas company by the plumbers who put into the building the gas pipes, that was understood by both parties to be a representation that the piping had been properly tested and was ready for use.

Leahey or his employees when they put in the meter did not examine to see whether the outlets in the other parts of the building were closed. They seemed to act upon the theory that after plans were furnished by Tiley to the company, and the latter furnished a meter to the occupant, they had a right to assume that the pipes in the building were all right The verdict of the jury in favor of Leahey is to the effect that he, or his agents, were not guilty of any negligence. Upon the evidence there seems to be no question but that Leahey and Tiley were competent plumbers.

The court, charged the jury that neither Tiley or Leahey were agents of the gas company, and that the company was not responsible for the failure of either to perform any duty he owed plaintiff’s intestate ; that “if the gas company allowed and permitted agents employed by consumers to let on gas without sufficiently securing the outlets of pipes put in or used by such consumers, the company is not liable for the acts of such agents or the consequences resulting therefrom; ” that “ the mere fact that consumers or their agents were allowed and permitted to turn on gas at the curbstone did not make the company liable for the consequences of so doing, when the company had nothing to do in fact with the act of turning on the gas; ” that the gas company “ owed no duty to the plaintiff’s intestate which, required it to inspect the gas pipes in buildings such as that in question, put in by a plumber employed by the owner or consumer, before allowing the gas to be let into the building, unless requested to make such inspection.”

The court, however, charged that it was the duty of the company to use reasonable care and diligence to prevent the gas from injuring persons by inhaling ór explosion, and then left it to the jury to say whether in the discharge of this duty it ought not to have made and promulgated, and insisted upon a compliance with a rule or regulation requiring that whoever turned on the gas upon an occasion like the one in controversy should, at the time,

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examine and see whether the outlets at the different places where meters were to be put on were properly closed. The verdict of the jury against the company in effect found that the company was negligent in the regard specified and that such negligence produced the injury.

It seems, therefore, to have been held that the company were not bound to inspect, but that they were bound to make a rule for an inspection by the employees of the occupant or owner. There are cases where a corporation is required to make rules and regulations for the conduct of its business and the guidance and control of its servants, Whittaker v. D. & H. C. Co., 126 N. Y., 549 ; 38 St. Rep., 523 , but the rule applied here seems to go beyond the scope of those cases.

By the statute, chapter 311 of 1859, § 6, it is provided that, “ upon the application in writing of the owner or occupant of any building or premises within one hundred feet of any main laid down by any such gas-light company, and payment by him of all money due from him to the company, the company shall supply gas as may be required for lighting such building or premises.” By § 8 of the act, the company by its duly authorized agent might, at all reasonable times, “ enter any dwelling, store, building, room or place lighted with gas supplied by such, company, for the purpose of inspecting and examining the meters, pipes, fittings and works for supplying or regulating the supply of gas and of ascertaining the quantity of gas consumed or supplied.”

The defendant here was called on to supply gas to this build-' ing, and accordingly did so by laying its service pipe from the main to the inside of the cellar wall and leaving it in proper condition. The company had no control of the pipes in the building beyond its service pipe; it had nothing to say as to how the owner should put in or locate his pipes or fix the places for the meters or guard against the escape of gas in the building. They could inspect for the purpose of protecting their rights as to the quantity of gas consumed or supplied. • They were not charged by the statute with any duty toward the protection of the occupants against the negligence of the agents of the owner or occupants. .

The gas escaped from a portion of the pipe owned by the owner of the building and where, in accordance with the system of pipes which he adopted, the gas was received preparatory to use from a meter. It was in a receptacle furnished by the owner of the building, and the company had no reason to believe it was defective. On the contrary, it was assured by a competent expert,, so far as the case shows, that the pipe was safe and ready for use.

If the company in the ordinary course of its business allow a party to take its gas into a receptacle furnished and owned by the party himself and preparatory to its use in his building, and the company have no knowledge or any reasonable ground for believing that such receptacle is defective, I fail to see any basis for negligence.

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In Flint v. Gloucester Gas Light Co., 3 Allen, 343 , it was held that a gas light company which had no charge of the pipes or fixtures inside of the meters in the buildings to which it furnishes gas, is not made responsible in damages for an injury caused by an explosion of gas in a room into which it had escaped by reason of negligence in letting it on before the end of a gas pipe leading into the room was closed, merely by having uniformly permitted without objection the person employed by gas consumers to put in such pipe and fixtures to let on the gas after so doing.

In 2 Shearman & Redfield on Negligence, 4th ed., § 697, it is said: “ The mere fact of the escape of gas, washings or refuse from a place under control of the company is sufficient evidence to raise a presumption of its negligence; but the fact of such an escape from apparatus connecting with the property of the company, but not under its control, is not sufficient, especially if the apparatus is the property of the plaintiff. Nor will it alter the case to show that the company had access to the place where the escape occurred.”

We are of the opinion that the theory upon which the jury were allowed to find the gas company negligent is not tenable, and, therefore, there must be a new trial.

Judgment and order reversed and new trial granted, costs to abide the event.

Hardin, P. J., and Martin, J., concur.