81 Ill. App. 493 | Ill. App. Ct. | 1899
delivered the opinion of the court.
No error in connection with the instructions or in the admission or rejection of evidence is urged or pointed out by counsel for appellant. There is little, if any, conflict in the evidence, and the only question presented is whether or not the facts stated, constitute a cause of action. Counsel for appellant insists that appellee was not entitled to recover, because, first, the evidence does not show that the defendant was guilty of any negligence which caused the accident and injury complained of; second, because the evidence shows that the appellee was guilty of negligence contributing to the accident.
The second count was based upon the fact which appeared from the evidence, that the gas flowed into the basement through the pipe which had formerly connected the now unused water closet with the old sewer. It is urged that appellee was guilty of negligence in permitting the same to remain open and in not informing the employes of appellant of its location and condition.
There is no evidence that appellee or her tenant knew of the broken sewer connection, but even if they were charged by law with notice, we do not think they would be guilty of negligence contributing to the accident, in not notifying appellant’s employes of its existence. Appellee could not have anticipated that the breaking of the connection with the old sewer could, in any manner, have contributed to so unprecedented an accident as the one in question. Neither was appellee guilty of contributory negligence in not giving notice of the gas in the building to the employes of appellant, who were engaged in searching for leaks in the street. Her tenant, about an hour before the accident, did, in fact, send notice to the office of the company, which was located only two blocks away.
The question remains, then, to be considered, whether defendant was guilty of negligence, causing the accident. A number of expert witnesses were introduced on behalf of appellant, who testified that the method pursued by appellant’s employes in searching for leaks, was the one universally used by gas companies, and that they never knew an accident to happen from applying a lighted match or torch to a hole drilled in the ground near a leak in a gas main, before the one in question.
We are therefore of opinion that there was no negligence on the part of appellant’s employes in applying the light" at the time and place in question, but that fact does not relieve appellant from responsibility. “In the operation of its business a gas company is bound to exercise such care and diligence as to avoid injury to the health and property of others by the escape of gas. For commercial profit it deals with a dangerous agent, and the degree of care devolving upon it, should be proportional to the dangers which it is its duty to avoid. If injury is done to adjoining property because of the imperfect manner in which pipes are laid, or because of failure to repair breaks, whether caused by its own fault or that of another, the injured property owner has a right of action to recover for all damages sustained by him. In case of a break, if it occurs through his own fault the company is liable without notice. If it occurs through the fault of another liability attaches as soon as the company has had notice and time to repair.” Rockford Gr. L. & C. Co. v. Ernst, 68 Ill. App. 300; Emerson v. Lowell Gas Light Co., 3 Allen, 410.
Appellant had notice of the defective condition of its mains long prior to the date of the accident in question. There were numerous breaks all over the city, where the sewer had been constructed, and in the single block on Fox street, where appellee’s premises were located, there had already been thirteen breaks in the main. The gas was continually permeating the basement of the adjoining buildings, and escaping to the surface of the ground, where it burned for weeks at a time. Property owners were unable to protect themselves from the inconvenience and dangers of the situation. Appellant was dealing with a dangerous agent. It had the use of the public streets for its mains and service pipes , to conduct that agent to the places where needed. It was therefore its duty to protect the public as far as possible from all dangers attending the use of the same. In Smith v. Boston Gas Light Co., 129 Mass. 318, it was said: “ The defendant was authorized by law to lay down pipes and convey gas under the surface of the public streets and was bound to use proper care and prudence in the conduct of its business, having reference to the delicate and dangerous character of the material in its charge. It was especially bound to exercise this care in the proper location, structure and repair of the pipes, so that there would be no escape of gas dangerous to life and health.”
But it is contended here that the appellant should not be held to the same strict accountability with which it would otherwise be charged, for the reason that the breaks were caused by the negligent manner in which the city filled the sewer trench and the consequent settling of the earth in the same.
The case of Butcher v. Providence Gas Co., 12 R. I. 149, was, in some respects, similar to the one under consideration. In that case the injury complained of occurred through the escape of gas from mains alleged to have been damaged by the city of Providence in the construction of a sewer. It was there contended by the defendant that it was the fault of the city, whose officers, in putting in a sewer, had not packed the dirt properly, and that the subsequent settling of the dirt had broken the defendant’s pipe. The court, however, upheld an instruction to the effect that, if others than the defendant were at work around the pipes, a new duty was imposed on defendant to guard against the want of care in the others, and to use proper care in remedying defects caused by such want of care. It is said in the course of the opinion: “ The defendant, in managing a dangerous element, was bound not only to due care on the part of itself and its servants,, but also to due care in preventing injury from the careless or wrongful meddling with its works on the part of others. They could not interfere with or prevent the city from building a sewer; but they had a right to and were bound to see that in restoring the earth to its place, their own pipes were properly supported, and if injured, to see that the injury was repaired as soon as it could reasonably be done.” See also Koelsch v. Philadelphia Co., 152 Pa. 355.
In this case appellant must have known that the location of the sewer trench across its service pipes and the manner in which the same was filled in by the city, could not but result in injury to its pipes. It was therefore its duty to see that its pipes were properly protected from injury. Failing in that, duty, appellant must be held responsible for such damages as result to the property of others by reason of such neglect.
We are of opinion the facts in the case, as developed by the evidence, fully sustain the verdict and the judgment entered thereon. The judgment will therefore be affirmed.