62 Ark. 109 | Ark. | 1896
(after stating the facts.) It is contended by counsel for appellant that the court erred in its charge to the jury. The first paragraph of the charge, if considered by itself, would be subject to criticism, for it might be construed to mean that the water and light company was to use such care as under all circumstances to discover gas escaping from its pipes, and that a failure to do so would constitute negligence. But, upon the question whether the jury has been misled by one or more specific instructions, all the instructions must be read together. A consideration of the entire charge in this case leads to the conclusion that the court did not intend to convey such meaning, and that it is not reasonable to believe that the jury could have been misled by it. A gas company must use due and reasonable care in the inspection of its pipes, and must repair defects in the same, whether caused by its own fault or not. When the defect or break in the pipe is caused, not by the negligence of the gas company, but by the act of a third party, and when the company has used due care in inspecting its pipes to discover defects therein, it is allowed a reasonable time, after notice of such defect, in which to make repairs. But if it has notice of a break in its pipes from which gas may escape and accumulate, and injure persons or property, it must, as soon as practicable by the use of due promptitude and diligence, secure its gas, either by cutting off the flow or repairing the break, so as to guard against such injurious consequences. To accomplish this end, the company must use a degree of care commensurate to the danger which it is its duty to avoid. If it fails to exercise this degree of care, and injury results from such negligence, the company is liable, if the person injured is free from fault contributing to the injury. Chisholm v. Atlantic Gas Light Co. 57 Ga. 28; Mississinewa Mining Co. v. Patton, 129 Ind. 472, S. C. 28 Am. St. Rep. 203; Emerson v. Lowell Gas Light Co. 3 Allen (Mass.), 410; Hunt v. Lowell Gas Light Co. 8 Allen, 169, S. C. 85 Am. Dec. 697; Holly v. Boston Gas Light Co. 8 Gray (Mass.), 123, S. C. 69 Am. Dec. 233; 8 Am. & Eng. Enc. Law, 1273; Whittaker’s Smith, Neg. 234; Bartlett v. Boston Gas Light Co. 122 Mass. 210; 2 Shear. & Red. Neg. (4th. Ed.) sec. .692.
The evidence tends to show that, previous to the explosion, the appellant company had notice that its pipes had been broken or injured by plowing in the street, and that gas was escaping. If it did not know this, the jury were at least justified in finding that it might have known it by due cafe in inspecting its line, which would amount to the same thing. If it had notice of the defect in the pipe, it should have taken precautions, by cutting off the gas or repairing the break in the pipe, to avoid injuries being caused by the escaping gas. Whether it was guilty of carelessness in this respect was a question for the jury, whose finding on this point has evidence to support it, and must stand. Chisholm v. Atlanta Gas Light Co. 57 Ga. 28; Butcher v. Providence Gas Co. 12 R. I. 149; Atkinson v. Goodrich Trans. Co., 60 Wis. 141.
The next question presented is whether the plaintiff was himself guilty of negligence contributing to the injury complained of. It is settled law that the master is responsible for injury occasioned by the act of his servant or employee while acting within the scope of his employment. 1 Shear. & Red. Neg. (4th. Ed.) 141; Whittaker’s Smith, Neg. p. 153.
The appellant contends that the appellee must in this case be held responsible for the act of Hammert in putting a lighted match to the gas, and causing the explosion. Hammert was the employee of Schneider. It was his duty to work in the storeroom into which the gas, which had accumulated under the store, began to force its way. The entrance of this gas would necessarily interfere with the work that he was engaged in on behalf of Schneider. It would not be unreasonable to hold that, in order to prevent such interruption of his work, he had the implied authority to discover and stop the escape of gas into the room in which he was at work. It is not necessary to show that he had authority to look for the defect in the pipe with a lighted match. If the act of attempting to discover the defect in the pipe, in order that the escape of gas might be stopped, was one within the scope of his authority, and that act was done in a way so negligent that it caused or contributed to the injury complained of, it is then of no avail to show that the master did not consent to or approve of the negligence. Ochsenbien v. Shapley, 85 N. Y. 214; Whittaker’s Smith, Neg. 157; Philadelphia, etc., R. Co. v. Derby, 14 How. (U. S.) 468.
A servant may do an act expressly forbidden by his employer, and yet, if it be within the scope of his authority, the employer may be liable for a resulting injury. This rule is constantly enforced in the cases against railroads, electric light and gas companies, and it applies to private persons who employ servants to transact their business. Garrentzen v. Duenckle, 50 Mo. 104; Ochsenbein v. Shapley, 85 N. Y. 214; Evans v. Davidson, 53 Md. 245; S. C. 36 Am. Rep. 400; Simonton v. Loring, 68 Maine, 164; Whittaker’s Smith, Neg. 157; 14 Am. & Eng. Enc. Law, 810; 1 Shear. & Red. Neg. sec. 155.
But we are not called on to determine whether, if this was the act of Hammert alone, it would come within the scope of his authority, or whether Schneider would be bound by it; for the evidence conclusively shows that Strauss, in whose charge the store was left by Schneider, assented to and approved of the act of Hammert which led to the explosion. Strauss, so far as the control and protection of the store was concerned, stood in the place of Schneider, and his acts in this regard must be considered the acts of Schneider. He was called as a witness by Schneider, and he testified that, when the gas began to enter the room, Hammert complained of the smell, and said that he would light a match and look for the leak; that he (Strauss) knew-that there was gas escaping in the room, and that Hammert was trying to find. it; that he made no objection, but thought that it was a good thing, and was willing for him to do so. Prom this testimony there can be no doubt that Strauss consented to and approved of the conduct of Hammert, and that, if Hammert was guilty of negligence, Strauss was also.
It can be no excuse to show that Strauss was only seventeen years of age, for this fact was known to Schneider when he left him in control of the store. If he left an immature youth in charge, he, and not the gas company, is to blame.
We should not hold, under the facts of this case, so far as they appear, that it was negligence j>er se for Hammert to use a match in trying to discover the place from which the gas escaped, for that would depend upon whether he had notice that the gas was escaping in large quantities or not. If he had notice that it was present in large quantities, it was gross carelessness for him to apply a lighted match to it. But if the quantity was small, or if there was nothing to cause a man of ordinary prudence, placed in the same situation, to believe that there was danger of an explosion, it would not be negligent to light the match. Such a question is one for the jury to determine. Chisholm v. Atlanta Gas Light Co. 57 Ga. 28; Butcher v. Providence Gas Co. 12 R. I. 149; Lanigan v. N. Y. Gas Light Co. 71 N. Y. 29.
But the appellee alleged, and the jury found, that Hammert was guilty of negligence. There was evidence to support that allegation and finding; but, had there been no proof, the appellee would be bound by his own allegation, and we must treat that fact as established. The case, then, stands that Strauss, who had charge of the store for Schneider, was present, and permitted Hammert, another employee of Schneider, to negligently use a lighted match in endeavoring to locate the place from which gas escaped. This negligent act of Hammert produced an explosion, which otherwise might not have occurred, and directly contributed to the injury of which Schneider complains in this action. Our conclusion is that, under these facts, -the judgment against the appellant cannot be sustained.
It is therefore reversed, and remanded for further proceedings.
See Consolidated Gas Co. v. Crocker, 82 Md. 113, 31 L. R. A. 785. —(Rep.)
