Di Sandro v. Providence Gas Co.

• Decision Date: 08 January 1918
• Docket Number: No. 5054.,5054.
• Citation: 102 A. 617,40 R.I. 551
• Parties: DI SANDRO v. PROVIDENCE GAS CO.
• Court: Rhode Island Supreme Court

102 A. 617

40 R.I. 551

DI SANDRO v. PROVIDENCE GAS CO.

No. 5054.

Supreme Court of Rhode Island.

Jan. 8, 1918.

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Action by Severino Di Sandro, by next friend, against the Providence Gas Company. Judgment for plaintiff, and defendant brings exceptions. Exceptions sustained, and case remanded for new trial.

Anthony V. Pettine and Pettine & De Pasquale, all of Providence, for plaintiff.

Harold W. Thatcher, Frank H. Swan, and Swan & Keeney, all of Providence, for defendant.

BAKER, J. The plaintiff, a minor, brought this action by his father, Dionidio Di Sandro, as next friend, against the defendant corporation to recover damages for injuries alleged to have been received by reason of defendant's negligence. The case was tried in the superior court before a justice sitting with a jury in December, 1916, resulting in a verdict in favor of the plaintiff for $1,500. At the conclusion of the testimony the defendant moved for the direction of a verdict in its favor, which motion was denied, and to which denial the defendant excepted. It also excepted to two specified portions of the court's charge to the jury, and the case is before this court on these three exceptions.

The declaration contains three counts. In the first count the plaintiff alleges that on the 27th day of March, 1913, he resided in a house on Marietta street in the city of Providence; that the defendant corporation furnished illuminating gas to said premises by gas pipes connected in the cellar with the main pipes in said street; that it was the duty of defendant to keep in repair and safety said pipes, approaches, and connections thereto, so that the gas passing through them would not explode or leak or burst forth from the same; that the defendant, unmindful of its duty, permitted some defect in the pipes, the approaches or connections thereto to arise or happen, which defect was unknown to the plaintiff, and of which he had no means of knowledge, but which the defendant knew, or but for the want of reasonable care and diligence would have known, whereby the said gas on the day and year aforesaid did explode and injure the plaintiff.

The second count says it was the duty of the defendant to so control and manage the flow of gas that it would enter said pipes and be communicated to the said premises safely and without danger to its occupants; that the defendant permitted some defect to arise in the flow of said gas, of which defect the plaintiff was ignorant, but which the defendant knew, or ought to have known, whereby the gas exploded and injured the plaintiff.

The third count alleges that the city of Providence had for some time prior to said March 27th been laying sewer pipes along Marietta street in the vicinity of the main pipes belonging to the defendant; that it was then and there the duty of the defendant "to properly guard its said main pipes on said * * * street so that the dirt which was necessarily dug in the laying of the said sewer pipes would he properly put back in its place and not be so replaced as to cause any damage or injury to the gas pipes" of the defendant; that the defendant was unmindful of this duty and "negligently permitted the said dirt to be so placed and so improperly packed when put back that the same caused the main gas pipe to become defective, whereby the gas running through said gas pipes did on the day and year aforesaid leak out from the said gas pipe and explode, and thus grievously injure the said plaintiff."

The evidence disclosed, among other things, these facts: The plaintiff was 18 years old at the time of the accident. In March, 1913, he resided in the second story of the house numbered 11 on said Marietta street with a family named Sylvester, and was working as a carpenter. On the afternoon of March 27th he left his work to go home at half past 4, had his supper, then went out and returned to the house at half past 5 or 6 o'clock, at which time he first noticed the smell of gas in the street when five or six feet from the house; thinks the gas came from a hole five or six inches in diameter right side of the street and about five feet from the house. In answer to the question, "How deep was it?" he replied, "Well, of course I didn't measure." He entered the house downstairs and told the occupants about smelling the gas, and they talked about it. Afterwards, at about half past 8, as plaintiff states, he took a lamp and with others went into the cellar where no leak was discovered, although he, while in the cellar, as some of them with him say, shut off one of the gas meters there. He returned upstairs, placed the lamp on the kitchen table, and they all sat around the table and talked about different things. After a time, not much after 9 o'clock at the latest, two men, Michael and Thomas Sylvester, came to the house, noticed the odor of gas, brought a lamp from the barn in the rear of the house and lighted it, and with it entered the cellar. Immediately there was a violent explosion, which badly damaged the house. The plaintiff suffered no direct physical injury, but was greatly frightened. He at once ran from the house, says he saw a second explosion right in front of him, which was followed by flames, and thinks the flames came from the hole he had seen when he came home. No other witness testified to a second explosion. Other occupants of the house testified as to the smell of gas (although no one of them claimed to observe it earlier than half past seven o'clock), the visit to the cellar, the explosion, and that they saw a blaze in the street not far from the house. Three of them also testified to seeing, late on March 27th, a depression or hole in the street near the house, but the testimony was not very definite on the part of any witness as to the location of such depression, one saying that "it rained so much that it made a hole near the house there and the water was going into that hole," but expressed her inability to state more exactly where it was. The other two, who were respectively brother and sister of the plaintiff, say it was "in the street near the house," one of them also adding "opposite the house." The same thing is true as to the location of the flame or blaze in the street after the explosion. Eight persons in addition to the plaintiff testify to seeing the flame or blaze in the street, three of them stating their inability to say where it was in the street. The plaintiffs brother and sister say the flames came from the hole they had previously seen. Angelina Sylvester says it was ten or eleven feet from the house, "not just in front, but side." Thomas Sylvester says the flame was "just by the outside of the paving stones of the gutter"—"what they call driveway, where the teams can come through." Vincenza Siravo, who lived opposite, says the blaze was "right in the middle of the street"; that the blaze "was there until midnight or after." On March 27th it had rained hard most of the day, but it did not rain in the evening prior to or at the time of the explosion.

The evidence particularly relating to the third count showed that from January 20. 1913, to February 6th of the same year, on which last date the sewer was accepted as completed, the city of Providence was engaged in laying a sewer in the middle of Marietta street at the depth of about 12 feet. This sewer ran from Charles street to Carnae street, or one block, and it was estimated that there were a dozen houses on Marietta street between Charles and Carnae streets. Lateral trenches, 10 or 11 feet deep, were dug from the main trench at intervals and branch sewers laid therein to the curb line of the street in order that the houses on the street might connect with the main sewer. Such a trench was dug for the service of No. 11 Marietta street. This trench was about 3 feet wide at the surface of the street. At a distance of about 4 feet from the established curb line, although no curb had been set, and between it and the main sewer in the middle of the street was the gas main of the defendant, which was 4 inches in diameter and was placed at a depth of about 4 feet below the surface of the street and was in its general direction parallel with the main sewer. The branch sewer trench running towards No. 11 Marietta street ran across and under the gas main, and exposed it to view for the width of this trench. There were similar lateral trenches and branch sewers on both sides of the street; those on the right side alone crossed and exposed the gas main to view in the process of excavation. The service gas pipes to the left side of the street, if any, must have been exposed to view in digging the trench for the main sewer, as this trench was...