122 Mass. 209 | Mass. | 1877
The injury to the plaintiff’s house was caused by an explosion of gas ignited therein by his tenant, Greensfelder. It was contended that the defendant was guilty of negligence in permitting a leak to occur in its main pipe in the street in front of the house, or in not taking proper steps to remedy the difficulty.
The defendant offered the record of a judgment in its favor in an action brought by Greensfelder to recover for injuries to his person and property by the same explosion, and contended that it was a bar to this action. The court ruled otherwise and excluded the evidence. This ruling was right. The plaintiff’s right to recover for the destruction of his building is entirely independent of the tenant’s claim for the personal injury. The landlord does not claim by, through or under his tenant. The former judgment therefore was not between the same parties or their privies, nor was the cause of action the same; no right or title to the demised premises was involved.
In a previous stage of this case, it was indeed decided that this action could not be maintained, if the injury was caused in part by the negligence of the tenant in possession. 117 Mass. 533. That conclusion follows from the application of a familiar rule, in actions of this description, which requires the plaintiff to be free from fault; and of another rule, which imputes to him the negligence of the person to whom he has intrusted the charge and control of the property injured. In this sense only is the tenant, under the last rule, regarded as owner, or identified with the owner of the property. It'fails to establish that privity which makes the. judgment offered conclusive m this case. The conduct of the tenant affects the plaintiff’s right to recover for the injury, in the same way as it affects the right of the tenant to recover for his own injury. But no identity of interest is established in the subject matter of either action ; no mutual or successive relationship to the same rights of property involved is shown; the plaintiff was in no sense surety for the
The judgment here offered is not a bar to this action; is not conclusive evidence, between these parties, of the facts in issue; and was not offered, if it be competent for that purpose, as prima faeie evidence, or as evidence of the fact that such a judgment was rendered. Eastman v. Cooper, 15 Pick. 276. Burlen v. Shannon, 14 Gray, 433. Dutton v. Woodman, 9 Cush. 255. Lowell v. Parker, 10 Met. 309. Merriam v. Whittemore, 5 Gray, 316.
The second and third of the instructions requested by the plaintiff, and given at the close of the charge, with accompanying explanations, taken in connection with the other instructions, were not erroneous. The jury, in the main part of the charge, had been told that the burden of proof was on the plaintiff to show affirmatively “ that the. injury was occasioned by the negligence of the servants of the defendant company; and that in no material degree did the negligence of the tenant of the plaintiff contribute to that injury;” “the question is, Was either of these parties negligent or not ? If either, which ? ” “ The plaintiff must satisfy you upon the whole evidence, by a fair preponderance of the evidence, that he was in the exercise of due care, of such care as a prudent man might reasonably ;e expected to exercise under the circumstances; and that the explosion was caused by the negligence of the defendant.” The company is liable in damages “ if the plaintiff’s tenant was in the exercise of due care.” If the tenant, “having discovered the presence of gas in unusual quantity in the house, or in a room of the house, did not take reasonable means and precautions to remove and exclude the gas, or, not knowing what such precautions were, did not notify the servants of the defendant that gas was escaping, or make some reasonable effort
The third instruction, standing alone, would seem to require the jury to find, in order to defeat the action, a degree of want of care amounting to reckless or wilful misconduct. The judge read this request, and, referring to what he had already said, added, that if the tenant did the act recklessly, it would show such negligence as would prevent recovery ; but if accidentally merely, and not negligently, it would not, and expressed his willingness to give the instruction substantially.
But upon the question whether the jury has been misled by one or more specific instructions, all the instructions and explanations must be taken together, to see whether as a whole they conveyed a correct idea to the jury. The jury could not have understood in this case that it was intended, in reply to these requests, to change the rule which had just been repeatedly given, requiring the exercise of ordinary care from the plaintiff and his tenant, that is, such care as a prudent man might reasonably be expected to exercise under the circumstances.
The plaintiff’s sixth request for instructions had reference to the duty imposed upon the tenant in using a light while trying to discover the escape of illuminating gas. The tenant had testified that he supposed the gas to come from the furnace, and therefore not liable to explode, and that he went into the cellar to examine the furnace. The whole question presented was as to the single act of going into the cellar with a light. Whether that act was negligent depended on whether' the tenant, acting reasonably, supposed it was a kind of gas which would not ignite and explode from the flame of a candle. And so the jury were told, and no more. The judge took nothing from the jury improperly. The whole question of the tenant’s negligence in going into the cellar, in failing to open windows, to give notice*