Thompson v. Cambridge Gas Light Co.

201 Mass. 77 | Mass. | 1909

Morton, J.

These are actions of tort to recover damages for injuries alleged to have been caused by gas, escaping from the pipes of the defendant company. The two actions were tried and argued together. The action by the female plaintiff is.for personal injuries. The other action is by her husband, the declaration being in three counts, the first for personal injuries to himself from gas poisoning, the second for loss of his wife’s services, arid the third for the loss of services of a minor child. The presiding judge instructed the jury that if they found for the husband on the first count in his declaration the damages should be nominal, and directed the jury to return a verdict for the defendant on the third count. The jury found for the plaintiff in each ease. The cases are here on exceptions by the defendant to the refusal of the presiding judge to direct a verdict for the defendant in the action by the female plaintiff and to his refusal to direct a verdict for the defendant on the first and second counts in the action by the husband.

We think that the refusals to give the rulings requested were right. It could not be ruled as matter of law that the plaintiffs were not in the exercise of due care. The female plaintiff testified that she had never used illuminating gas, did not know hovy it smelled and did not know what caused the odor. If she did not know that it was illuminating gas that caused the odor she clearly was not at fault in not notifying the defendant. Whether she could or should have done anything else to remedy the condition that had arisen and was in the exercise of due care in remaining in her tenement as she did, was plainly for the jury. The husband testified that though he noticed in the morning a bad smell and the possibility of illuminating gas occurred to him, he did not think it was really that, and did not pay much attention to the smell. When he returned at night the odor was very much worse, and he took steps at once to have the matter attended to. In his case also, the question whether he was or was not wanting in due care was for the jury.

There would seem to have been no doubt that the odor was due to the presence of illuminating gas in the tenement. The defendant’s foreman so testified. And the jury were warranted in finding that the gas came from a pipe in the street about twenty feet from the house which was found “ cracked all the way around sufficiently to admit a case knife.” The defendant contends that there was no evidence of negligence on its part and that the break in the pipe was caused “ by the contraction due to the cold weather ” as its foreman testified. But the jury might properly have found, and for aught that appears did find, that the pipe would not have cracked in the manner in which it did if it had been properly laid, and that if it had been laid deeper it would not have been affected by the cold weather, and that it should have been laid deeper. It was the defendant’s duty to see that the pipe was “ laid in the ground at a suitable depth and in a suitable manner, and kept in proper repair.” Smith v. Boston Gas Light Co. 129 Mass. 318, 321. And it was for the jury to say upon all of the evidence whether the defendant had performed that duty and whether the breaking, of the pipe was due to causes beyond its control or which could not reasonably have been anticipated by it, or whether it was due to negligence on its part. Smith v. Boston Gas Light Co., ubi supra. Greaney v. Holyoke Water Power Co. 174 Mass. 437. Gould v. Winona Gas Co. 100 Minn. 258.

Exceptions overruled.