97 So. 344 | La. | 1923
The defendant has appealed from a judgment for damages for the death of plaintiff’s daughter. She was asphyxiated by gas escaping from a pipe that was left open in the house where she was employed, and it is contended that the escaping of the gas was the result of negligence on the part of the plumbers employed by the defendant gas company. The case was tried by a jury, whose verdict allowed $5,000 for the mother’s mental suffering, etc., and $167.-50 for the expense of the girl’s funeral. Answering the appeal, plaintiff asks for an increase of the judgment.
There is no dispute about the important facts of the case. The defendant, Baton Rouge Electric Company, is also the gas' company. Plaintiff’s daughter, Isabel Kent, a colored girl, 17% years old, was employed as nurse for a 3 year old child of Mr. and Mrs. Hebert. The Heberts and Mr. and Mrs. Si-card occupied the same apartment as tenants. They had moved into the apartment in August. It had been vacant since the latter part of June. When the tenant then moved out, the gas company’s plumber disconnected the gas pipe from the stove in the kitchen, and cut off the gas at the meter. He did not plug or cap the end of the gas pipe on the kitchen wall, but left it open, all of which was in accord with the custom of the company. The open pipe extended only a few inches from the wall, not far above the floor, and turned downward and extended to a point about 6 inches from the floor. When the Heberts and Sicards moved into the apartment, they placed a kitchen cabinet in front of the unused gas pipe. They used an oil stove for cooking, and did not use or need gas for any purpose until winter came. The apartment was equipped with gas radiators. On the 18th of November, at the request of the Heberts or Sicards, the defendant gas company turned on the gas at the meter in the apartment. When the plumber and his helper came, between 9 and 10 o’clock in the forenoon, the only persons in the apartment were the Hebert child and his nurse, Isabel Kent. She admitted the men and then called Mrs. Sicard, who was employed in the neighborhood. She showed the plumber where the meter was. He testified that,' before turning on the gas, he asked whether there was a gas stove in the apartment, and was told that there was none. He testified that he first asked the colored girl, and then asked Mrs. Sicard, and that, even though they both told him that the kitchen stove was an oil stove, he “didn’t take their word for it, but went into the kitchen, and looked around, and didn’t find any sign of a pipe in the kitchen.” Mrs. Sicard, as a witness in the case, denied that the plumber had inquired about a gas stove.
When the plumber had turned on the gas at the meter, he examined the radiators and made sure that the taps were closed tight. Mrs. Sicard asked him to light one of the radiators, and he had some difficulty in lighting it. Believing there was only air in the pipe, he disconnected it at the union, and, observing that gas came out he connected it again, and then the radiator burned all right. Thereafter Mrs. Sicard smelled gas, and told the plumber so, and he replied that the odor was not that of escaping gas, but was due to the fact that the radiators were new.
The plumber admitted, in his testimony, that the gas meter had a dial on it, which, if he had watched it for a little while after turning on the gas and shutting off the radiators, would have told that the gas was escaping somewhere. He said that that was one of the purposes of the dial or indicator, which, unlike the meter-reading apparatus, responded quickly and indicated almost immediately whether gas was going through the meter. Our opinion is that it was negligence on the plumber’s part not to find out whether gas was going through the meter, with the radiators shut off.
The plumber and his helper left the apartment immediately after turning on the gas, and Mrs. Sicard then returned to her place of employment. The only persons left in the apartment were the child and the nurse.
Within an hour, Mrs. Hebert came to the apartment and remained 10 or 15 minutes, amusing her child. She smelled the escaping gas, and asked Isabel Kent about it. The latter replied that the plumber had told Mrs. Sicard that the odor' came from the new radiators, and was not gas. Mrs. Hebert then examined the radiators to make sure that none was leaking, and, admonishing the girl .to keep the doors and windows closed — for it was a very cool day — she left the apartment.
About an hour later — that is, near 11 o’clock' — a restaurateur, whose kitchen, on the ground floor, adjoined the building, in which the Heberts and Sicards had the upstairs apartment, smelled gas escaping. He immediately notified the defendant company by telephone, but no one came to attend to the matter. Later, the restaurateur sent a messenger to the company’s office, asking again for an investigation of the odor of gas in his kitchen; but the company paid no attention to the request. At 12:30, the cashier in the restaurant telephoned to the defendant’s office again.for an investigation of the escaping gas; but no one came to see about it. At 1 o’clock, Mrs. Sicard returned to the apartment, and, being unable to arouse the inmates, she summoned her husband, and he broke into the place. The Hebert child was found lying on the floor under a bedj and the nurse was on a window seat, at a closed window. Both were dead — asphyxiated by the gas escaping from the pipe in the kitchen.
The coroner was summoned and came immediately. The inquest resulted in a verdict in accord with the facts which we have stated; that is, that the deaths were caused, accidentally, by asphyxiation by gas escaping from an uncapped pipe in, the kitchen of the apartment. As we said at the beginning of this opinion, it is not now disputed that the deaths were caused by the gas which the defendant company’s employees, unintentionally, allowed to escape from the unused pipe in the kitchen of the apartment. Mr. and Mrs. Hebert were allowed damages for the death of their child. See Hebert et ux. v. Baton Rouge Electric Co., 150 La. 957, 91 South. 406. Although the affirmance of the judgment (reduced from $7,500 to $5,000) in that case was by only a division composed of two
“Well, they told me there wasn’t any there, but I didn’t take their word for it, and I went into the kitchen and looked around, and I didn’t find any sign of a pipe in the kitchen. The only thing I saw was the oil stove.”
The import of the plumber’s statement was that he feared that, if a gas stove had been taken out of the kitchen, the service pipe on the wall might have been left open. Knowing that householders and servants were not familiar with such matters, it was quite natural that the plumber did not ask either Mrs. Sicard or the servant girl whether there was an open gas pipe in the kitchen, when they told him — if they did tell him — that there
It is not necessary to discuss the company’s neglect to give attention to the restaurateur’s complaint of the escaping gas. As appellant’s attorneys say, the evidence makes it very probable that enough gas had escaped to kill the inmates of the apartment before the gas found its way into the restaurant.
The judgment is affirmed, at appellant’s cost.