119 N.Y.S. 363 | N.Y. App. Div. | 1909
Plaintiff seeks to recover for injuries received because of an explosion of natural gas which had escaped from an uncapped pipe in an upper room in her house. . The litigated question is, who was responsible for that condition of the pipe ? If it was removed by defendant’s employee when testing the pipe, and he negligently failed to replace it, then, of course, there can be no question of defendant’s liability.
The house had been piped, and the piping tested in May preceding the accident, but the piping was not connected with defendant’s main in any way till October tenth following. Defendant sent its employee, Hallock, to install the gas meter and connect up with the service pipe and the house piping that afternoon. The only use that was to be then made of the gas was in the cook stove, and not for lighting purposes. Blanding, an employee of the plumbers who originally, installed the piping in the house, went there at about the same time to put the burners in the stove and prepare it for operation. He had no occasion to interfere with the cap, or the pipe, which it closed. This pipe was in another part of the house some distance removed from the room in which the' cook" stove was, and was intended for use only in supplying gas for lighting purposes. The evidence fairly warranted the jury in finding that the cap was securely on the offending pipe in the morning of that day. The plaintiff, her brother, and the two employees above referred to were the only persons in the house during that day, as they may also have found. Every one of these persons swears that he or she did not remove or interfere with the cap. But Hal-lock, the defendant’s employee, was the only one who had any reason to remove it, and he only if he made a pressure test of the piping of the house, i. e., a test with an air pump and a gouge. The evidence is clear that such a test was invariably made by defendant when installing a meter, unless such a test had been theretofore made by it. Hallock had such -a pump and gouge with him at the house. Defendant’s officer, who sent him to install the meter, did not know that the pipes had been previously tested. Neither did Hallock when he left defendant’s office on this service. Before arriving at the house, however, he was told by Sippel, one of the plumbers who piped the house, and by Blanding, the plumber’s employee, to
The other exceptions urged upon our attention have been examined, but we do not find that they present reversible error.
I do not think we can say the verdict is excessive. It is large, it is true, but the plaintiff was frightfully and permanently injured and disfigured. Defendant was content to rely on plaintiff’s evidence as to her injuries. We must assume that the jury found it true, and that defendant conceded as much.
In conclusion it is clear, and practically conceded, that the cap must have been removed that day by someone. It did not come off without direct human aid. No one had any occasion to remove it' except Halloclt. He would, necessarily, or at least naturally, do so if he made the pressure test, as his instructions from defendant required him to do unless a previous test had been made; and, as the jury may have found, he insisted to at least two persons, after he had learned that the test had been previously made, that he was going to make the test anyway. The jury were fairly warranted in finding that he did actually remove the cap, make the test and then negligently fail to replace it.
The judgment and order should be affirmed, with costs.
All concurred, except Williams, J., who dissented.
Judgment and order affirmed, with costs.