SCHMEER v. GAS LIGHT CO

PECKHAM, J.

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 application to the company to be supplied with it, and its presence in the hall and in their apartments was most obnoxious to them, and if continued might, of course, soon have become very dangerous.

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 adopt as a means of securing payment for its gas and safety in its supply. It manufactured and furnished an agent for illuminating purposes which might become a most dangerous one, 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 company as against any claim of the owner of the building who had applied for a meter or any tenant who had so applied. The case of Flint v. Gloucester Gas Light Co. (3 Allen, 343) does not go far enough to save the defendant from any possible liability in this case. There the plaintiff was himself the owner of the building and had employed and paid one Thomas to put gas pipes therein connected with the service pipe laid by the defendant and to put up and arrange the fixtures and burners necessary for using gas in some of the rooms. This man, having put the fixtures in the building, himself turned on the gas, and the explosion soon thereafter took place. The plaintiff claimed that Thomas in turning on the gas was the agent of the defendant, while the defendant claimed that it had simply been cognizant of a custom on the part of Thomas or other gasfitters to turn on the gas when they had completed their piping, and that defendant had simply permitted it, but had in no sense employed Thomas or any one else to do it. The defendant requested the court to charge that this mere permission was not sufficient to make Thomas its agent if it had never assumed to furnish or interfere with the pipes or fixtures inside the building. The court declined to give such instruction, and it was held error. It was a case of an application for gas by the owner of the building. We are here not dealing with the case of an owner or of a tenant who had made application for a meter and who might be said to have asserted by that act the proper condition of the piping and to have thereby waived any further examination. Here is the case of an injury to a third person arising from an explosion in the third story hall caused by the escape of the gas from pipes situated in that story and not properly capped, by reason of which the escaping gas penetrated into the apartments of non-consumers and who had made no application for such gas.

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 leak? The company surely had no right to intentionally pour out its manufactured gas upon the tenants who had not applied for it. Some care was due from it when supplying those who did apply, to see that those who did not should be protected from the undesired element.

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 founded. It might properly refuse to permit the gas to be turned on in a case of separate stores and flats like that here presented, until some reasonable examination of the piping had been made in the other portions of the building, where gas had not been applied for, such as would lead to the belief that the piping in that other portion was in proper condition. We do not say that the company was bound, as matter of law, to make this examination by its own agents, or that a failure to make it, and a reliance on the certificate implied from the delivery of plans was negligence, but we say that whether such reliance was or was not negligent was, under the circumstances of this case, a matter for the jury to decide. Having adopted the practice of relying upon the plans when delivered as equivalent to a certificate that the piping was in good condition, and thereafter permitting any one to turn on the gas, the propriety of that custom must go to the jury upon the question of negligence.

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.

The defendant also urges that it was not its duty to turn on the gas, but it was only obliged to allow it to be turned on, and, therefore, it ought not to be held liable for the act of a stranger. In this we think it entirely misapprehends its duty. It is obliged to supply the gas to applicants. When they have done what is necessary to make a connection with its consent with the mains of the defendant and have applied for and obtained the meter to measure their supply, we are clearly of the opinion that in order to fulfill its duty to supply gas the defendant is under the obligation when applied to of turning it on so that the supply may be given. Certainly it ought not to be held liable for the act of a stranger in turning on the gas without its knowledge or request. We do not permit any liability to be founded upon that fact. If liable at all, it must be for its own neglect (if the jury shall so find) in failing to make any inspection and in adopting a custom which when carried out permitted the turning on of the gas by any one at any time after the delivery of a meter by the company. This is the extent of defendant's liability. We do not think the principle of the case of Rylands v. Fletcher (L.R., 3 Eng. Ir. App. 330) applies here. The defendant is not an insurer. In the English case the defendant was held liable at all events for the damage done to his neighbors' mines by reason of an overflow from water which the defendant had accumulated on his own land.

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 by 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 piping in cases similar to this has been fairly and properly examined previous to turning on the gas (if such examination by defendant's servants is called for at all), that thereafter there is a continuing liability on the part of the company to see to it that such piping is kept in proper condition. As the company has no control over the piping, does not put it in and is not consulted about it, the principle upon which it might be held liable in cases of this character at the time of the first delivery of gas, if no precaution were taken at all, is simply that it would have the right to refuse to turn on, or permit others to turn on, the gas for the supply of the applicants until properly assured of the condition of the piping in other portions of the building. Having become assured of it, and the gas being on, it would not seem that the company ought further to be regarded as liable for the continuous good condition of the piping. Here we may justly say that to impose such a liability upon the defendant would clearly be unreasonable. It would render necessary the examination at frequent intervals of all the buildings in the city in which gas was used. This would be so onerous as to be practically impossible of execution because of the expense to the company. The law ought not to, and does not, exact an unreasonable amount of care from any one. Under the restrictions, however, as above stated, we think the question of defendant's negligence was for the jury.

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.

The judgment must be reversed and a new trial granted, costs to abide the event.

O'BRIEN, BARTLETT and HAIGHT, JJ., concur; FINCH and GRAY, JJ., dissent; ANDREWS, Ch. J., not sitting.

Judgment reversed.