delivered the opinion of the court:
Defendant in error recovered a judgment in the circuit court of Vermilion county against plaintiff in error for $3200 in an action on the case for damages from a fire alleged to have been caused by the ignition of gas escaping from a defective pipe carrying illuminating gas furnished by plaintiff in error to the apartment building owned by defendant in error. After a trial by the court and jury a judgment was entered on the verdict for $3200, and the case was taken by plaintiff in error to the Appellate Court, where the judgment was affirmed. It has been brought here by petition for certiorari.
The plaintiff in error is a corporation engaged in the business of furnishing gas and electricity for commercial purposes to the residents of the city of Hoopeston. Gas is conducted through pipes to the various residences, including the apartment building of defendant in error. The testimony shows that the apartment building in question was three stories high and that there were four four-room apartments or flats on each floor; that defendant in error, her husband and daughter occupied the south apartment on the first floor; that a small air-shaft about fourteen inches square ran up through the center of the building and connected with various apartments; that the air-shaft in the apartment occupied by defendant in error ran through a closet opening into the kitchen; that in this closet was located a gas meter connected with a gas stove; that pipes connecting with the gas main in the street ran into each apartment, being connected with the gas meter therein, which was in turn connected with what is called a hotplate, or a gas stove. Each apartment in the building thus had its own meter and the tenant paid for the gas he consumed on the slot principle,—that is, each meter was provided with a slot wherein a twenty-five cent piece could be dropped, and when twenty-five cents’ worth of gas had been consumed the meter automatically shut off further gas until another twenty-five cent piece was dropped in the slot. Once a month an inspector for the gas company collected the money out of each meter. The evidence for plaintiff in error tends to show that when this gas equipment was installed in the building it was made with the agreement that if defendant in error would place a gas-plate or stove in each apartment plaintiff in error would install the necessary pipes, meters and connections without charge, and that no charge was ever made by plaintiff in error for any part of the gas equipment in the building except for the hot-plates and the stoves. The apartment occupied by defendant in error and her family originally had a hot-plate therein, but about a year before the fire a gas stove was substituted. James C. McClure, the husband of defendant in error, testified that after the change was made from the hot-plates to ranges he noticed at different times a strong odor of gas in his own and other flats in the building; that he had observed leaking gas in the building several times during the year preceding the fire, particularly in April or May; that he had noticed leaking gas in the northeast corner of a flat on the third floor, and there had been intervals that gas had leaked in the building from August, 1918, to the time of the fire, in August, 1919; that often when employees of plaintiff in error came to read the meter he called their attention to escaping gas and asked them to correct it, but they always reported, after searching, that they could not find any leak; that he telephoned the office of plaintiff in error three or four months before the fire and complained of a strong odor of gas and asked to have it repaired; that on the morning of the fire he got up about 5 :3o and both he and his wife noticed a strong odor of gas but breakfast was prepared on the gas range, and about six o’clock he discovered that the leak was at a gasket or knuckle that joined the meter on the pipe connecting with the gas range; that he touched a match to the leak and a flame shot out about an inch wide and about five inches long. His wife testified that she also examined the gas pipe and lit the gas escaping therefrom with a match and then blew it out. The husband testified that after he had blown out the flame he began trying to reach the plaintiff in error’s office by telephone, which he finally succeeded in doing shortly after seven o’clock, and asked for the manager, Austin, and on being told that Austin was out of the city he talked with Austin’s son, who was an employee of plaintiff in error, and explained to him about the leak and asked him to send someone out to fix it right away, and advised him of the extent of the leak by telling him of the flame that was caused when he lighted the escaping gas; that Austin said they could not fix the leak that day as they had started a job in another part of the city which they had to finish but would get to his place the next day. Defendant in error left the building with her daughter to go to a train about 6:3o in the morning, and it was after she left that her husband succeeded in reaching plaintiff in error over the ’phone. The husband further testified that about eight o’clock, leaving no fire or light in the flat and leaving the windows open but locking the doors, he personally went to plaintiff in error’s office to tell again about the leak and ask to have it fixed as soon as possible. He also said that he would like to have a change made in the pipes in the basement. The testimony on the part of the plaintiff in error tended to show that he seemed more anxious to have the pipes changed in the basement than to have the gas leak fixed in his apartment; that he told them that if he had a wrench he could fix the leak himself. The evidence on the part of some of plaintiff in error’s employees, as well as one of the tenants in the flat above that of defendant in error, was to the effect that McClure talked over the ’phone with an employee of plaintiff in error about fixing the leak and also about changing the pipes in the basement. McClure testified that one of the employees in the office of plaintiff in error stated that they would send out men at once to fix the leak, and three employees made preparations to go to the apartment building to make the repairs; that after he had been so informed he started back to the building and had proceeded about half the distance when he heard the alarm of fire, and on reaching the building found that the fire was in his own flat. The testimony of the witnesses on behalf of plaintiff in error tends to show that the alarm for the fire was shortly after eight o’clock in the morning. The weight of the evidence found in the record would tend to show that the fire occurred before nine o’clock,—probably between 8:3o and 8:45 in the forenoon. The fire burned up through the air shaft from defendant in error’s flat to the third floor, destroying much of the roof and doing considerable damage to the west half of the third floor and the south side of the first floor, burning most of the personal effects in defendant in error’s flat. The gas meter for her flat was on the south side of the partition, towards the side where the fire was. McClure testified that he had been told by plaintiff in error’s employees never to move the gas meter nor to do anything with the pipes himself.
The fire department of the city of Hoopeston responded to a call to the fire and put it out. The chief of the department testified that judging by where the fire was the greatest, it started in a lower room close to the air-shaft; that there was a gas stove in the apartment which he was told was occupied by defendant in error; that there was a smell very much like gas around there, but there was too much fire to distinguish any flames that indicated the burning of gas. Mrs. Sherfield, who lived on the second floor just above defendant in error’s flat, was attracted on the morning of the fire by a smell of burning wood and saw a light blaze through defendant in error’s kitchen. Another tenant, Clarence Matthews, noticed the smell of escaping gas at different times before the fire, and testified he had notified the company when a representative came to collect for the meter but was told they could not locate it; that the escaping gas was worse in the kitchen close to the gas stove. His wife, Lillie Matthews, testified to the same effect. C. E. Wyatt, another tenant in one of the flats in the building, testified that he was in his garden when a lady called his attention to the fire, and he attempted to gain entrance to the McClure flat to turn in an alarm by telephone but found the door locked; that he could see the fire inside and saw that the linoleum was burning; that he heard the fire whistle, and knowing the alarm had been given went to his own apartment to rescue some of his personal property; that he noticed the flames were coming from the center of the building. Othie Bruten, who was standing near the defendant in error’s flat shortly after the fire broke out, helped move a cook stove out of the building, and it appeared from the testimony that this stove, having h fire in it, was in an apartment occupied by the O’Neals. The O’Neals lived on the first floor, and the O’Neal kitchen adjoined the closet in which the gas range of defendant in error’s apartment was located and where the gas was found escaping by defendant in error and her husband. The testimony also shows that there was an opening about a foot and a half long and about five inches wide from the O’Neal flat into the air-shaft. The evidence also shows that there was a cook stove in an apartment occupied by another tenant, having a fire in it on the morning of the fire; that the south side of this stove was next to a closet, with an opening into the air-shaft similar to the one in the O’Neal apartment, and that opening was right above the one where the meter in the McClure flat was placed.
There is considerable testimony in the record offered on behalf of plaintiff in error as to the leak in defendant in error’s, flat being one of minor importance as its employees understood from what had been told them by McClure. The testimony of one of the employees of plaintiff in error who had stated to McClure that he would go to the apartment at once and fix the leak was, that when he got to the apartment and found the fire in progress he went immediately to the closet where the McClure meter was located and shut off the gas in the air-shaft where it came into the building. He also testified that he noticed an odor of either sewer gas or waste water at that time and that the waste water-pipe leaked where the gas pipe was; that he found the cooking utensils in the way near the gas meter and had to kick them aside, and that the fire was not out when he shut off the gas. Another employee of plaintiff in error, Orla Krager, testified that he was in the office when McClure came in to complain about the leak, and he agreed with the other employee that McClure seemed to be more anxious to have the pipes changed in the basement than to fix the gas leak in the closet. One of the witnesses testified that the main gas pipe came up on the north wall of the closet and that the gas stove of defendant in error was against the south wall; that a space of two and a half feet was between the meter and the stove, the meter being about six inches from the main pipe leading into the building; that when they went in to cut off the gas the lead pipe had melted off during the fire and gas was escaping from that.
A motion was made by counsel for plaintiff in error at the close of defendant in error’s testimony, and again at the close of all the evidence, to instruct the jury to find plaintiff in error not guilty, which the court denied.
Counsel for plaintiff in error contend that the essential elements of a cause of action for negligence were not proven; that the doctrine of res ipsa loquitur does not apply to the facts in this case, and that there is no evidence in the record tending to show the manner in which the escaping gas became ignited, and that the declaration is defective because it does not state the exact manner in which the gas was ignited. This court has stated, in harmony with the authorities on the question, that “the essential elements of a cause of action for negligence are: (x) The existence of a duty on the part of the person charged to protect the complaining party from the injury received; (2) a failure to perform that duty; and (3) an injury resulting from such failure.” (Devaney v. Otis Elevator Co.
Counsel for defendant in error concede that there was no positive or direct proof as to how the gas was ignited but that the proof found in the record shows clearly that the gas leak was in the closet; that the closet was near the bottom of an air-shaft about fourteen inches square, which ran up through the building; that this air-shaft connected with three other apartments in which stoves were burning at the time the fire occurred. The proof also shows that the blaze was observed at the top of the roof in the center of the building where the air-shaft ended, and the evidence tends strongly to show that the fire started in the air-shaft in defendant in error’s apartment, and there is evidence that the cooking utensils which were located near the McClure gas meter were scattered about as though there might have been an explosion of gas, although there is evidence on the part of an employee of plaintiff in error that he scattered these utensils with his feet when he went into the closet to turn off the gas. It would seem from the record that the jury were justified in finding that the gas was ignited by coming in contact with fires in adjoining apartments, by means of the air-shaft.
It is urged by counsel for plaintiff in error that the counts of the declaration do not in any way set out how the gas became ignited. The first additional count of the declaration contains the averment that “while the plaintiff was using her said premises with due care and caution for its safety and preservation, said gas from said pipe escaped into a certain other room in said building of the plaintiff and not occupied by the plaintiff and became ignited.” The proof shows that there was no fire in -defendant in error’s apartment at the time the gas became ignited, and that neither defendant in error nor her husband was guilty of any negligence in causing the fire. Furthermore, it has been held by the authorities that there need not be any direct evidence as to the cause of the ignition of gas in order to hold a gas company responsible for an explosion. In Luengene v. Power Co.
The Latin maxim res ipsa loquitur has frequently been discussed by this and other courts. In Chicago Union Traction Co. v. Giese,
In Illinois Central Railroad Co. v. Siler,
In discussing the maxim res ipsa loquitur and its application to the case under consideration in Gould v. Winona Gas Co. 10 L. R. A. (N. S.) 889, the court said (p. 895) : “One of the essentials to the application of the maxim is clearly present. The agency was admittedly in the exclusive management of the defendant. Its condition was peculiarly within its knowledge, and within the possibility of its knowledge only. The other essential is also here. The result was such as in the ordinary course of things does not happen if those who have the management used proper care.”
In Sipple v. Laclede Gaslight Co.
In Greaney v. Holyoke Water and Power Co.
In Morrison v. Superior Light and Power Co.
In Coffeyville Mining and Gas Co. v. Carter,
“The general rule is, that whoever does a wrongful act is answerable for all consequences that may ensue in the ordinary course of events, though such consequences are immediately and directly brought about by an intervening cause, if such intervening cause was set in motion by the original wrongdoer or was in reality only a condition on or through which the negligent act operated to produce the injurious result. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence, and if they are such as might with reasonable diligence have been foreseen, the last result as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. The question always is, Was there any unbroken connection between the wrongful act and the injury?—a continuous operation? Did the facts constitute a succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? The test is to be found in the probable injurious consequences which were to be anticipated,—not in the number of subsequent events and agencies which might arise.” (22 R. C. L. 134, 135.)
It cannot be said that the result of escaping gas must necessarily be an explosion or a fire. That may be the result under certain circumstances and it may not be under other circumstances, and it depends upon what is shown to exist whether a prima facie case of negligence is made and the doctrine of res ipsa loquitur may be properly applied. A jury may find negligence from the breaking of a gas pipe and the consequent escape of gas, but it is for them to decide whether they will so find or not, and if there are other circumstances in the case they must weigh them all. (Carmody v. Boston Gas Light Co.
While there have apparently been conflicting decisions as to the presumption of outside agencies, and some courts have stated that they will take judicial notice that gas will not explode unless caused by some outside agency, as the introduction of fire or an electric spark, yet it is generally held that the occurrence of injuries which do not ordinarily happen when reasonable and proper care is taken to avoid them, affords a presumption of negligence and places upon the defendant the burden of proof that ordinary and reasonable care was taken to avoid the accident, where the cause of the accident is in fact unexplained. (2 Thornton on Law of Oil and Gas,—3d ed.—secs. 688, 689. See, also, the reasoning in North Chicago Street Railway Co. v. Cotton,
It is contended that instruction No. 1 for defendant in error omits to incorporate the element of the duty of defendant in error to exercise due care. Other instructions given to the jury state positively that there could be no recovery if defendant in error was guilty of negligence, and it is elementary that instructions should be considered as a series.
The other instructions complained of, to the effect that there was no evidence tending to show how the escaping gas became ignited, do not need specific consideration, as the questions of law involved therein have been sufficiently covered by what has already been said in this opinion.
The allegations of negligence found in the declaration are sufficient where proof is offered of circumstances from which an imputation of negligence necessarily arises. (Feldman v. Chicago Railways Co.
The question whether or not plaintiff in error is liable on this record for the damages largely depends upon the controverted facts presented in the evidence. This court has often said that the weight to be given to the evidence must be submitted to the jury, and when their finding of fact has been approved by the trial and Appellate Courts, the question whether the evidence is sufficient to support the verdict or whether the weight or preponderance of the evidence is against the verdict of the jury cannot be raised here. Reiter v. Standard Scale Co.
We find no reversible error in the record. The judgment of the Appellate Court will be affirmed.
Judgment affirmed.