238 Mass. 221 | Mass. | 1921
The plaintiff’s intestate, a boy fourteen years of
age, whose due care is not questioned, while standing in the street was blown into the branches of a nearby tree by an explosion of illuminating gas, where he clung or hung for a few minutes, and then dropped to the ground, either lifeless, or unconscious, and was pronounced dead by the medical examiner upon his arrival. The declaration imeach action is in two counts, one for conscious
It appeared on abundant evidence that for a long time prior to the explosion a strong persistent odor of illuminating gas had been prevalent in the vicinity of the accident. The facts of the explosion, even if the cause of ignition never has been ascertained, and that this defendant owned and maintained in the vicinity cement or concrete conduits, some thirteen in number, with manholes, the covers of which were blown off, were uncontroverted. The jury could find that in one of these manholes gas had accumulated from a leak in a ruptured gas pipe directly under and in contact with the conduit, which by reason of its location and use, as fully described in the record, was so built as to extend diagonally across the gas pipes which were united at this point by a “four way connection” referred to throughout the trial as a “cross.” The plaintiff contends that the dangerous and unsafe condition of the gas pipe was caused by the improper construction and negligent maintenance of the conduit. It had been put in some six or seven years before the accident, and after its construction the street had been resurfaced and paved and car tracks installed, over which cars were operated. The jury could find that the conduit, weighing about two and one quarter tons, had been so built as to rest directly over and within six inches of the gas pipes, under which earth had been more or less excavated, and that, instead of being a solid mass of bonding, the concrete had been moulded in layers leaving seams. It also could be found that a joist had been placed under the middle of the cross by the Edison company and that the conduit as it slowly settled transmitted the load of passing street cars, while its continuous vibration, especially- when the ground was frozen, caused an unequal subsidence, and if the
The defendant however urges, that, the work of building and placing the conduit having been performed by an independent contractor in accordance with plans and specifications approved by the wire department of the city, it is absolved, from all liability. But even if permitted or licensed for its own use and benefit to build and maintain the conduit which otherwise would have been a nuisance, it could be found on the evidence that the defendant knew the street was being concurrently used by the public to which it owed the duty of due care not only in construction but of maintenance. Gorham v. Gross, 125 Mass. 232. Igo v. Cambridge, 208 Mass. 571, 576. And this is true even if the location and the méthod of building had been approved by the commission. Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341. By the terms of the contract the contractor was to take its instructions from “the Supt. of the St. Engineering Dept, of the Company acting either directly or through his properly authorized agents; such agents acting within the scope of the particular duties intrusted to them.” The superintendent also was the
The defendant, if through its negligence gas accumulated and remained in the manhole, is liable for the natural and probable consequences. The jury were to determine whether in the exercise of ordinary care it should have foreseen that, if gas escaped, it might be ignited by a natural cause or by some person whether in the employment of the gas company, or a traveller, even if such person or the company also might be liable for negligence. Feneff v. Boston & Maine Railroad, 196 Mass. 575. The plaintiff’s action against this defendant is on grounds entirely independent of her action against the gas company, and the admissions of that company, or proof of its negligence, or unauthorized acts, or responsibility therefor to the intestate is not a defence. Koplan v. Boston Gas Light Co. 177 Mass. 15.
The defendant, having placed its conduit in a public way, was bound thereafter to use due care in maintenance not only under the conditions of travel existing when the conduit was built but coming into existence afterwards, whether by resurfacing or paving of the street, or the establishment of car tracks. Derry v. Flitner, 118 Mass. 131, 134. And the instructions that “a company which contracts to have work done, if that work is of a nature which will cause danger to outside persons, persons who are not parties to the contract, then it is the duty of the party, not the constructing party, but the other party, to use reasonable care
The jury doubtless could find that in the construction of the conduit there were deviations from the plan as approved. But the judge correctly said that deviations would not be evidence of negligence unless they were of a material and substantial character actually contributing to the escape of gas. Grier v. Guarino, 214 Mass. 411. The violation of a statute or ordinance is only evidence of negligence for the jury. It is not conclusive. Finnegan v. Winslow Skate Manuf. Co. 189 Mass. 580.
It being plain that, having been laid and maintained in the street without the permission of the city, the gas pipes constituted a nuisance, the defendant urges that the negligence of the gas company prevents recovery, even if its own negligence may have contributed to the injury and death of the intestate. The defendants however could be found to be concurrent tortfeasors, and under our decisions could be sued jointly or severally for conscious suffering. Feneff v. Boston & Maine Railroad, 196 Mass. 575, 580, 581. Oulighan v. Butler, 189 Mass. 287, 293. “If each contributes to the wrong . . . the proximate cause is the wrongful act in which they concurrently participate, whether the result causes instantaneous death, or injuries which the sufferer survives.” Brown v. Thayer, 212 Mass. 392, 397. But by reason of the statute the penalty can only be assessed in separate actions. Brown v. Thayer, 212 Mass. 392, 399. The case of Black v. New York, New Haven & Hartford Railroad, 193 Mass. 448, is not applicable to any question raised by the record for reasons pointed out in the recent case of Bilodeau v. Fitchburg & Leominster Street Railway, 236 Mass. 526. The defendant cannot escape liability for its own negligence because of the negligence of a concurrent wrongdoer. Eaton v. Boston & Lowell Railroad, 11 Allen, 500, 505. And the instructions in substance that even if the gas company was a trespasser the defendant was not excused from the consequences of its own negligence if proved to the satisfaction of
The actions moreover are not between the defendants to determine which company is the primary wrongdoer, but between the plaintiff and the companies sued severally, and, if the rulings were correct upon the issues between the plaintiff and this defendant, it has no ground of complaint to the refusals of the judge to rule as to the liability of the gas company, or of rulings which it deemed too favorable to that company. “If both defendants contributed to the accident, the jury could not single out one as the person to blame.” Corey v. Havener, 182 Mass. 250, 252. Koplan v. Boston Gas Light Co. 177 Mass. 15, 28.
The motion for a directed verdict was rightly refused. The first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, thirty-fourth, thirty-fifth, thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth, fortieth, forty-first, forty-second, forty-third, forty-fourth, forty-fifth, forty-sixth, forty-seventh, forty-eighth, forty-ninth, fiftieth, fifty-first, fifty-second, fifty-third, fifty-fourth, fifty-fifth, fifty-sixth, and fifty-seventh requests, in so far as they correctly state propositions of law were sufficiently covered by the instructions, and the instructions to which exceptions were taken when read with the context were adequate statements of the law applicable to the case.
The evidence of Barker, a witness called by the plaintiff, to which the defendant excepted, while elicited in cross-examination by counsel for the gas company, is not shown to have been improperly admitted. His experience as the “claims” agent of the gas company, instructed “many years ago” to investigate and ascertain the cause of leaks in gas pipes for the purpose of making repairs, and that for nearly twenty-nine years whenever leaks were reported he made such investigations, and had investigated the cause of the explosion, and was at the manhole shortly after it occurred, and saw the employees of the gas company excavating,
The testimony offered by the gas company that, whenever notice was received from the city that a street where gas mains were laid was to be resurfaced, its practice was “we bar over each and every joint, and if there should be any trace of gas an opening is made and the joint driven up,” was admissible as between it and the plaintiff on the question of the gas company’s negligence in failing to discover the leak after the street was resurfaced and paved. Cook v. Rider, 16 Pick. 186. Dorman v. Kane, 5 Allen, 38, 40. Commonwealth v. Duprey, 180 Mass. 523. Emery v. Boston Marine Ins. Co. 138 Mass. 398, 410. Powers v. Boston Gas Light Co. 158 Mass. 257, 260. The defendant, as we have said, seems to overlook the right of the gas company to meet as far as possible the plaintiff’s evidence of its negligence even if in so doing the Edison Company might be adversely affected. The Edison Company would be sufficiently protected by asking the judge to instruct the jury to restrict such evidence as if the gas company were the sole defendant.
The evidence of McMahan, an inspector of the wire department, that the work of putting in the conduit was done under the direction of the engineering department of the Edison Company, was apparently admissible when first offered by the gas company. If later it appeared that, not having been present, his evidence was hearsay, the defendant should have moved to have it struck out. Morrison v. Holder, 214 Mass. 366, 369.
The testimony of Gow, the plaintiff’s expert, that the conditions which he described and which the jury could find would “account for such a break and that in his opinion they did cause the break,” was admissible for reasons sufficiently stated, notwithstanding the defendant’s contention that, the work having been done by
The evidence of Hilton, admitted to be qualified to give an opinion, that the cause of the break was the “weight of the conduit on top of the cross, the loose ground under the cross, and the settling and vibration,” was properly admitted. It was competent on the issue of the defendant’s negligence.
It also was immaterial whether the defendant’s property had been damaged by the explosion. Its own pecuniary loss could not mitigate either the damages or the penalty. The ruling limiting the evidence to proof that a very substantial damage had been done was,sufficiently favorable.
The measure of recovery is the only remaining question. While for convenience the cases were tried together, the plaintiff had the right to pursue each defendant as if the trials had been separate and before different juries.
The count for conscious suffering could be joined with the count for death in.the same action, although each defendant was liable only for its own negligence, or according to the degree of its own culpability without any regard whatever to the negligence or degree of culpability of the defendant in the other action. Bartley v. Boston & Northern Street Railway, 198 Mass. 163. Oulighan v. Butler, supra.
The judge gave to the jury the proper rule by which compensation for conscious suffering could be recovered, and the basis on which the assessment should be made. He was not required to do more. It is the satisfaction of the judgment against a joint or concurrent tortfeasor, not the recovery of a verdict against him which bars an action against the other wrongdoer. Oulighan v. Butler, 189 Mass. 287, 293. Feneff v. Boston & Maine Railroad, 196 Mass. 575. Lovejoy v. Murray, 3 Wall. 1.
The judge properly refused to give the request of the gas company, that “if the jury should find against both the Edison Electric Illuminating Company and the Boston Consolidated Gas Company on the counts in the plaintiff’s declaration for the death of the plaintiff’s intestate, the total amount awarded under these counts cannot exceed $10,000,” and the Edison Company’s twenty-ninth, thirtieth, thirty-first, thirty-second and thirty-third requests, that if verdicts were returned and went to judgment the
The plaintiff’s motions that interest from the date of the writ
The result is that having fully examined and considered all questions raised by the record, we are of opinion that the defendants severally have failed to point out any reversible error, and in each case the exceptions should be overruled.
So ordered.