Bernier v. Pittsfield Coal Gas Co.

• Decision Date: 14 October 1926
• Citation: 257 Mass. 188
• Parties: ANNA BERNIER v. PITTSFIELD COAL GAS COMPANY. GEORGE BERNIER v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 188

ANNA BERNIER v. PITTSFIELD COAL GAS COMPANY. GEORGE BERNIER v. SAME.

Supreme Judicial Court of Massachusetts, Berkshire.

October 14, 1926

September 21, 1926.

Present: RUGG, C.

J., CROSBY CARROLL, WAIT, & SANDERSON, JJ.

Negligence, In use of gas. Practice, Civil, Common Law Rule 44 of the Superior Court (1923); Requests, rulings and instructions.

By reason of Common Law Rule 44 of the Superior Court (1923), no exception lies to a refusal by a trial judge to grant requests for rulings that

"Upon the whole evidence and the pleadings in the case the plaintiff cannot recover" and "There is not sufficient evidence that the negligence of the defendant caused the plaintiff's injuries and the plaintiff cannot recover."

Where, at the trial of an action against a gas company in a city for personal injuries suffered from the inhaling of gas which escaped from a leak in a gas main of the defendant, there was evidence that the leak was caused by frost penetrating the ground to a depth of over six feet where ordinarily it penetrated only four and one half to five feet, and that the defendant's mains were three and one half feet under ground, it was proper to refuse to grant a ruling asked for by the defendant, "If the experience in laying gas pipes in the city . . . has determined that three feet is the proper and reasonable depth to lay such pipes and is the general accepted practice in the laying of gas pipes, then upon the evidence and agreements in the case, the plaintiff cannot recover."

TWO ACTIONS OF TORT for personal injuries and consequential damages resulting from inhaling gas escaped from a leak in a main of the defendant. Writs dated April 18, 1923.

In the Superior Court, the actions were tried together before Donahue, J Material evidence is described in the opinion. The defendant asked for and the judge refused the following requests besides that quoted in the last paragraph of the opinion:

"Upon the whole evidence and the pleadings in the case the plaintiff cannot recover."

"There is not sufficient evidence that the negligence of the defendant caused the plaintiff's injuries and the plaintiff cannot recover."

There was a verdict for the plaintiffs in the sums of $1,000 and $500, respectively. The defendant alleged exceptions.

M.B. Warner, for the defendant. J.M. Rosenthal, (J.B. Cummings with him,) for the plaintiffs.

SANDERSON, J. In these actions, tried together, the plaintiffs are husband and wife; each suing to recover for injuries received from escaping gas, and the husband, in addition, is suing for expenses incurred because of his wife's injuries. The harm suffered by the plaintiffs was caused by the inhalation of gas escaping from a break in the defendant's pipe and percolating into the plaintiffs' home from the street. It was stipulated that the pipe was laid three and one half feet below the surface; that at the time of the injuries the weather was extremely cold and the...