27 A.D. 584 | N.Y. App. Div. | 1898
This action was begun March 6, 1893, to recover damages for the loss of service of the plaintiff’s wife, the expenses of her cure, occasioned by personal injuries sustained by her.; and also for the loss of goods caused, it is alleged, by the negligence of the defendant. The plaintiff recovered a verdict for $2,65Q damages.
The defendant is a domestic corporation engaged in supplying natural gas for lighting and heating buildings in the city of Olean. Augustus T. Eaton is the owner of No. 11 Buffalo street, a dwelling house about twenty-three feet wide and twenty-seven feet deep, with an addition in the rear fourteen feet square, called a lean-to and used as a kitchen.- There is a cellar under the main part of the house, but none under the kitchen, which is not underpinned, and the floor of which is some inches above the. ground. Boards extend from the sills of the kitchen to the ground. The house was built in 1888 or 1889 by the present owner, and was plumbed for natural gas for lighting and lieating.' For about five years before November 11, 1892, it was occupied by Andrew Peterson, a tenant of the owner. During his occupancy natural gas was used for heating the house, including the stove in the kitchen'. - It was supplied through a pipe from the street entering through the front cellar wall, and was carried a few inches underneath the floors and extended through the rear wall of the upright ¡Dart and under the kitchen. From the end of this pipe under the kitchen apiece of pipe extended upward, at right angles with the main pipe, through the kitchen floor and was annexed to the kitchen stove. When Peterson vacated the house (November 11, 1892), an employee of the defendant, Thomas Doyle, shut off the gas at-the street-and disconnected the stoves. Mr. Peterson claimed to own the perpendicular pipe extending from the main to the kitchen stove which was removed by Doyle and taken away by Peterson. Thomas Doyle, the defendant's gasfitter, testified that he screwed this pipe out of the main, which was about eight inches below the kitchen floor and suspended by a wire. He testified that there was a loose board in the kitchen floor which he readily removed, and after the perpendicular pipe had been taken away he plugged the opening in the main by screwing in an iron plug. In January, 1893, the plaintiff rented the house, and January 24,1893, '
The plaintiff tried this case upon, the theory that the explosion was ' caused by the defendant’s gasfitter negligently leaving open - the main which supplied the kitchen stove, when he disconnected Peterson’s stove, November. 11, 1892, and negligently-failing to discover, January 24, 1893, when he'connected the plaintiff’s sitting-room stove with the main, that it was open. The .defendant advanced no theory explanatory of the cause of the explosion, except that it was suggested that some one on the 24th or 25th of of January, 1893, opened the main extending tinder the kitchen floor, which theory, if such it can be called, is a highly improbable one and not supported by the evidence. No one had any interest in removing the plug which Doyle testified he placed in. the main November 11,1892. The plaintiff’s kitchen stove was not fitted for gas, and he could not use it with gas until it should be. It is highly
“2. The company shall use all reasonable care and diligence to-furnish a sufficient supply of gas, but if the supply of gas should fail either partially or totally, either from failure of wells or bursting of pipes, or if prevented by legal proceedings, or for any cause beyond the control of the company, then the company is not to be held liable for any damages or loss resulting therefrom; neither is it to he held liable for damages to .person or property resulting from explosion- or f>'e, or for any other damages whatsoever arising or occurring-from the use of the gas.”
It is contended that the last clause of this provision, printed in-italics, exempts the defendant from liability for this explosion. This clause should be construed strictly against the party whose words they are. The conditions are referred to on the face of the application signed by the plaintiff, but there is no evidence that his-attention was called to the conditions'when he signed the application. The just construction of this clause is, that the defendant is not to-be held liable for damages for accidents occurring from the use of gas; that the words “ use of the gas ” limit and control all the precede
■ The court did not err in refusing to instruct the jury that in case Doyle plugged the kitchen main November 11, 1892, and after turning on the gas January 24,1893, applied his nose to the hole in the kitchen floor to ascertain whether gas was escaping, the defendant had performed its duty to the plaintiff. It was the duty of the defendant to exercise great care to prevent the escape of gas from the pipes within its control into the dwelling. ■ It appears that there were other well-known -tests usually applied which were not made. Whether what. Doyle testified that he did was all he should have done was a question for the jury. Even if Doyle plugged the pipe November 11, 1892, but so imperfectly that when gas was turned on to the house through the street connection it escaped into the -kitchen by reason of imperfect plugging, the jury was authorized to find that the defendant was negligent. Whether cement or paint was applied to the plug, so as to make a tight connection, does not • appear.
The defendant moved for a new trial on the ground of. newly-discovered evidence, which motion was denied, and from that order it appeals. The newly-discovered witness is William Whelply, who states in his affidavit that he has been a resident of Olean for seventeen years, and for some years one of the constables of the city ; that in December, 1892, and January, 1893, he was well acquainted 'with No. 11 Buffalo street; that he noticed that the house was
The judgment and order denying a motion for a new trial on the minutes should be affirmed, with costs, and the motion for a new trial on the ground of newly-discovered evidence should be affirmed, with ten dollars costs and printing disbursements.
All concurred.
Judgment and order denying motion for a new trial affirmed, with costs, and order denying motion for a new trial on the ground" of newly-discovered evidence affirmed, with costs.