Emerson v. Twin State Gas & Elec. Co.
| Decision Date | 17 September 1934 |
| Parties | EMERSON v. TWIN STATE GAS & ELECTRIC CO. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Stafford County; Scammon, Judge.
Case for negligence by John R. Emerson against the Twin State Gas & Electric Company. Trial by jury and verdict for the plaintiff, and upon the defendant's exceptions to the denial of its motions for nonsuit and directed verdict, to the admission of evidence, to the argument of counsel, and to the charge, the case was transferred by the judge to the Supreme Court.
New trial.
Case for negligence. Trial by jury and verdict for the plaintiff.
The defendant is a public utility, furnishing gas through underground pipes, laid in the streets of Dover. Having occasion to repair a leak, it obtained permission from the street commissioner to make the necessary excavation. The earth was largely clay, and this was used to refill the hole. It was not proper material to use for that purpose, and for this reason there was continuous need for added filling for some months. This was put in from time to time by the city. At a time when there was need for such addition, the plaintiff ran his motorcycle into the depression, and was thrown and injured. Other facts appear in the opinion.
Transferred by Scammon, J., upon the defendant's exceptions to the denial of its motions for nonsuit and directed verdict, to the admission of evidence, to the argument of counsel, and to the charge.
Conrad E. Snow and Leonard C. Hardwick, both of Rochester (Snow orally), for plaintiff.
Hughes & Burns, of Dover (Stanley M. Burns, of Dover, orally), for defendant.
I. Underlying the other issues in this case is the problem of the relation of the defendant and the city to each other and to the traveling public. The defendant owns gas mains, buried under the streets and used in the business of serving the public in the distribution and sale of gas. It is necessary to dig up the streets from time to time to make repairs upon the mains.
The statute provides that permission for the original location of the mains must be obtained from the city. P. L. c. 98, § 1. It is conceded that such permission was obtained and that the mains were legally located. There is a further provision that when there is occasion to dig up the streets in order to make repairs like permission must be obtained. Ib.
The statute designates the mayor and aldermen as the officials to grant such permission; but an amendment to the charter of Dover transferred the management and control of the streets in that city to the street commissioner. Laws 1929, c. 329, § 35. The defendant applied for and received oral permission to make the excavation in question. This was sufficient to relieve the defendant from the character of an interloper, and its acts in digging up the street from constituting a nuisance. However desirable it may be that such permits be made matters of record, the statute does not require it. The acts were done with the statutory consent, and the excavation was not a nuisance per se.
The obligations of one exercising a privilege so granted are defined in the statute:
Conceding that there was evidence that the hole was improperly refilled, the defendant denies responsibility for the results which followed. After the city charter was revised in 1929, the city government passed an ordinance which provides that "it shall be a consideration for all such licenses * * * that the back filling and repairs incident to the granting of any such license, shall be done and performed by said street commissioner and any and all expense incurred by said street commissioner in the performance of such work shall be paid by said licensee."
It is argued that this ordinance took from the defendant all control over the refill, and that therefore liability for its condition does not exist. The city could not, by ordinance, vary the liability which the statute imposes upon the defendant. By whatever agency the refilling is done, the statutory responsibility therefor remains upon the defendant.
It is true that the imposition of such a condition for granting the license may entail great hardship upon the defendant. On the one hand, it is liable to the traveling public for injuries caused by improper refilling, and, on the other, control over that operation is taken from the defendant by the city. It may be that the ordinance is void as attempting to impose unreasonable restrictions upon the exercise of rights vested in the defendant by charter or earlier compact with the city. The origin and nature of the right to maintain the mains does not appear. But whatever it may be, it does not in any way impair the statutory protection given to the traveling public. If the ordinance attempts to unduly limit the defendant's operations, the remedy is to be sought in resistance to the ordinance, and not in a denial of the rights of the public.
Moreover, it appears that in this instance the provisions of the ordinance were not insisted upon. It could be found that the refilling was done by the defendant, without any supervision by the city. Clearly, any negligence in that operation was chargeable to the defendant, and liability for untoward results would follow.
It is next urged that, as the defendant filled the hole so that a surface even with the street was attained, and the result was approved and accepted by the city, the defendant's obligations were at an end and its liability for future results terminated.
The city's acceptance of the condition could not impair the statutory rights of the public. It is not a judgment that the work was properly done.
Nor would the city's neglect of an alleged duty to properly care for the situation after taking it over relieve the defendant from results thereafter occurring because of improper filling by the defendant, not remedied by the city. Such negligence of the city would not be an intervening cause within the meaning of the law of negligence. Robertson v. Monroe, 79 N. H. 336, 109 A. 495. The defendant's negligence "was not deprived of its character as legal cause by the mere failure of a third person to counteract its tendencies." Bixby v. Thurber, 80 N. H. 411, 415, 118 A. 99, 102, 29 A. L. R. 175.
There was sufficient evidence that the settling of the fill,...
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