Summary
In Lannen v. Albany Gas Light Co. (44 N.Y. 459), where the defendant sent a workman to ascertain the location of and repair a leak in a gas pipe in the cellar of the building in which the plaintiff resided, and caused an explosion in the cellar, it was held that the question of the defendant's negligence was one for the jury.
Summary of this case from German-American Insurance v. Standard Gaslight Co.Opinion
Argued January 12th
Decided May 6th, 1871
Sidney T. Fairchild, for the appellant.
Samuel Hand, for the respondent.
Every legal proposition in this case, to which the facts therein give rise, is involved in the charge of the judge at circuit, "that Smith was the agent of the defendant and not of the plaintiff," and "that the defendant was liable, if the injury complained of was caused by his negligence in lighting the match;" and in the refusal to charge that if the leak, from which the gas escaped, was in the plaintiff's pipe and not in the service pipe put in by the defendant, the plaintiff was guilty of negligence which contributed to the injury. It was among the unquestioned facts in the case, that the loss of gas escaping, as it did in this case, from a place in the pipe below the meter, was the loss of the defendant and not of the plaintiff's father; that it was the defendant's custom to invite its customers to give notice of the escape of gas from the pipes; that it kept in its employ persons to examine and ascertain the location of the leak or leaks through which the gas escaped; that the notice given that the cellar was filled with gas was responded to by the defendant, by sending Smith to ascertain the cause. And thus the proposition charged by the court, that Smith was the agent of the defendant and not of the plaintiff's father, was clearly established; and, as a matter of course, if he was so careless in the discharge of the duty confided to him as to cause the injury complained of, the defendant was responsible. There was no evidence that the plaintiff's father was in any respect at fault for the break in that portion of the pipe from which the gas escaped. But concede it to be otherwise, and that in a drunken fit he had staggered against it and caused it to spring a leak. It is difficult to see how that contribution to the injury (if it may be so regarded), should shield the defendant. As well might an unskillful or careless surgeon, called to ascertain if a fracture existed and its location, excuse himself for negligence in respect to it by proving that his patron, being intoxicated, fell from a horse and caused the fracture. The judgment should be affirmed.
If it had appeared that the accident, which resulted in the injury of the plaintiff, was occasioned, in any degree, by the negligence of the plaintiff or her parents, such negligence would undoubtedly have been a defence to this action. But there is no proof of such negligence. It does not appear how the crack in Mr. Lannen's pipe, through which the gas escaped, was occasioned. There is certainly no evidence that it was occasioned by the negligence of plaintiff's parents. It is, however, wholly immaterial how the gas came into the cellar. It was entirely harmless there, except to persons inhaling it. If not interfered with, it had no tendency whatever to produce the accident complained of. It was a very explosive fluid, and the accident was caused by the explosion, and that was caused by the lighted match; and the only negligence, in any way connected with the accident, was in lighting the match in the cellar. Suppose there had been no gas in the cellar, and Lannen had placed an open keg of powder in the cellar, and had informed defendant and its agent that it was there, and the agent had carelessly thrown a lighted match into it, and thus blown up the house; could it have been said, in any legal sense, that the negligent act of placing the powder in the cellar contributed to the accident? To any such charge of negligence, it would have been a sufficient answer that the defendant and its agent were notified, as they were in this case, that the explosive element was there.
Smith lighted the match, and the judge at the circuit charged that he was the agent of the defendant, and not of the plaintiff. To this charge the defendant excepted. Smith was in the service of the defendant. Upon receiving information that the gas was escaping at this house, it sent Smith to ascertain where the leak was, and what occasioned it. It was the duty of the company to keep the meter and service pipe in repair, and it was for its interest to know when there was a leak, so that it might ascertain where it was and repair it; or, if it was not in the service pipe or the meter, that it might shut off the gas until the owner repaired it; and, hence, it was its custom to require notice of all leaks to be given to it. It selected Smith. He was in its employ, paid and controlled by it. He was in no sense the agent of plaintiff's father. He did not become such agent from the fact that his examination was also for the benefit of the occupants of the house. Such occupants would be benefited by the supply of the gas; and yet this did not make any of the persons supplying it in any way their agents. It sent Smith into this cellar to do a work, primarily for it, which might also benefit the occupants of the house; and yet it is clear he remained the agent of the defendant.
The judge also charged the jury that, if the injury was caused by the negligence of Smith in lighting a match, the defendant was liable; and to this charge the defendant excepted. The judge was not requested to charge as to the degree of negligence for which the defendant was liable, and it does not appear how he charged upon that subject, and it must be presumed that he charged correctly. The defendant was bound to send a competent agent to the cellar, who knew how to conduct himself in the presence of gas, as it was informed that the gas had escaped into the cellar before it sent him. And, if the agent was incompetent and ignorant of the explosive nature of gas, then it was negligent in selecting such an agent, or in not properly instructing him before he was sent. If it selected a proper and competent agent, then it is responsible for the carelessness of its agent. If the agent went into the cellar upon the business of the company, to do a work beneficial to the company, and at the same time beneficial to the occupants, he was bound to exercise ordinary care and prudence, and the jury did not err in holding that lighting the match in the cellar filled with this explosive gas showed the absence of such care. If it should be held that Smith was sent by the company, as its agent, to do a gratuitous service to plaintiff's father, he was still bound to some care, and he would certainly be liable for gross negligence. (Story's Agency, §§ 18, 20; 2 Kent's Com., 572; Rooth v. Wilson, 1 B. Ald., 59; Shiells v. Blackburne, 1 H. Black., 158, 162.) And the jury may well have found that Smith's act, which caused the explosion, was grossly negligent.
It matters not that the agent found that the leak was at a place which the defendant was not bound to repair. This was not known when he went into the cellar, and was the very fact which it was the interest of the defendant to ascertain.
Upon the whole case, therefore, I can see no reason to disturb the judgment below and favor its affirmance.
All for affirmance.
Judgment affirmed with costs.