47 N.Y.S. 262 | N.Y. App. Div. | 1897
By this action damages are sought to be recovered for negligence upon the part of the ' defendant in allowing a pipe, laid in the ground near the plaintiff’s premises and used for the purpose' of conveying gas, to become out of repair, so 'that the gas escaped therefrom, entered plaintiff’s premises and inflicted damage. The fact of the injury and its cause are without dispute. The plaintiff was a florist, and was the owner, of certain greenhouses situated on the westerly side of Debevoise avenue in Long Island City. The gas mains ran upon the easterly side of- the avenue, and a street lamp was situate directly in front of one of the greenhouses on the westerly side. The lamp was supplied with gas by means of a
It is claimed by the defendant that it is not liable for this damage for the reason that it has been guilty of no negligence. This claim is based upon the theory that it originally laid perfect pipes, the life of which, as demonstrated by experience, had not yet expired; that it was hot aware of the escape of any gas, and could not be, by any system of inspection, as none came to the surface of the ground by reason of its frozen condition ; that it immediately remedied the defect, and prevented the further escape of gas on being notified; that' the condition of the pipe was produced by the action of the electrical current used by . the street railroad, which produced eleetrolytical action upon the pipes, corroding and eating the substance of the pipe until it permitted the gas to escape; that this ■ action was only understood by scientific men, and defendant was without knowledge of it. Hor could such action, if understood, be reasonably expected to have operated upon the pipe on account of its distance from the power house where the electrical current was generated. We are, therefore, to see if this contention can be upheld. We assume that the defendant had authority to lay its pipes in the street, and that no negligence can be imputed by reason of the manner in which they were laid. The obligation resting upon the defendant required the exercise of ordinary -care and prudence in the conduct of its business and in the distribution of its eras. Ho fixed standard can
It was testified by Henry Fisher, a witness called for the plaintiff, that in the fall of 1894 he sometimes went out in the evenings, after closing up business, and took the street car opposite plaintiff’s greenhouses ; that there was always a very bad smell of illuminating *gas at that point. This testimony was not in anywise discredited, and there was no proof that there was any escape of gas from any other place than from this pipe. The jui’y were, therefore, authorized to find that the condition of this pipe permitted the gas to escape in perceptible quantities before the ground became frozen and held it. They were also justified in drawing the inference that this had existed for some time, and. that competént inspection would have discovered it. Finding these facts, the jury were authorized in arriving at the conclusion that the defendant had not exercised the degree of care and prudence which the law imposed, and was, therefore, guilty of negligence. And this must be the result, whether the pipe was corroded .by natural causes or was eaten away by electrolytical action.
There is also another ground on which negligence can be predicated, somewhat closer but still sufficient. We have already observed that there was conflict of testimony concerning the time when the pipe was laid. There was also conflict as to its life. The defendant’s proof tended to establish that its life was twenty-five years; the plaintiff’s
There is no error in the judgment, and it should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.