Friese v. Boston Consol. Gas Co.

Decision Date23 September 1949
Citation88 N.E.2d 1,324 Mass. 623
PartiesFRIESE v. BOSTON CONSOL. GAS CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Action by Heine Friese against Boston Consolidated Gas Company for personal injuries resulting from gas explosion allegedly due to defendant's negligence.

The Superior Court, Warner, J., entered a judgment for defendant notwithstanding verdict for plaintiff, and each party excepted.

The Supreme Judicial Court, Spalding, J., held that whether the defendant was negligent and if so whether such negligence was the proximate cause of the explosion were for jury, and that the trial court erred in giving an instruction not based on the evidence, and sustained the exceptions of each party, and remanded the case for a new trial.

Before QUA, C. J. and LUMMUS, RONAN, WILKINS, SPALDING and WILLIAMS, Jj.

M. Michelson, Boston, and A. J. Bronstein, Boston for plaintiff.

C. C. Petersen, Boston, for defendant.

SPALDING, Justice.

This is an action of tort to recover for personal injuries sustained by the plaintiff in an explosion alleged to have been caused by the defendant's negligence. The plaintiff had a verdict which was recorded under leave reserved. Thereafter the judge entered a verdict for the defendant. The plaintiff brings the case here on exceptions challenging this action and various rulings made during the trial. The defendant also comes here on exceptions but presses them only if the plaintiff's exceptions are sustained.

A summary of the pertinent portions of the evidence most favorable to the plaintiff is as follows: On February 6, 1942, the defendant installed a gas burner, controlled by a thermostat, in the furnace of a house which was owned and occupied by the plaintiff parents with whom the plaintiff lived. The furnace was connected with a chimney, about six feet away, by means of an eight inch flue. This flue ‘as installed by the defendant ran from the furnace to the chimney in a horizontal line without pitch or rise and sagged in the middle.’ The burner contained a safety device designed to prevent gas from flowing into the burner in the event the pilot went out.

On September 24, 1945, the defendant installed an automatic gas hot water heater near the furnace. It had a three inch flue which was joined by ‘a short right angle connection’ to the eight inch flue, mentioned above, at a point about midway between the furnace and the chimney.1 In the basement there was also a coal stove which was connected with the chimney by a flue which entered the chimney about eight inches below the flue to which the furnace and hot water heater were joined.

In March of 1945 the defendant cleaned the pilot in the furnace and also the flue, and in May turned off the gas for the summer. On August 1, 1945, ‘there was a general cleaning of the furnace by the defendant and ‘it was turned on for the season on October 26, 1945.’ Thereafter down to the date of the explosion on February 3, 1946, ‘there had been no complaints with respect to the furnace or the hot water heater.’ The mother of the plaintiff testified that ‘so far as she knew nobody other than the defendant did anything in connection with the house heater or the hot water heater.’

About 10 o'clock on the morning of February 3, 1946, the plaintiff's father smelled gas and went downstairs to the basement. He looked through a crack between the door and the casing of the furnace and could see no flame, but he ‘could hear the sound of gas going into the burner of the furnace.’ He called the plaintiff who came down to the basement, and while the plaintiff was in front of the furnace he heard the hot water heater go on and then there was an explosion which blew out the part of the flue pipe which was between the furnace and the hot water heater, the firebox door, and also the small clean-out door at the top of the furnace.’ At 7 o'clock on the morning of the accident a wood fire had been lighted in the stove next to the heater and there ‘was still a little fire * * * [in it] after the explosion * * * it was low and there were no sparks.’ As a result of the explosion the plaintiff was severely injured. Evidence in addition to that set forth above will be recited hereinafter as occasion requires.

The plaintiff's exception to the entry of the verdict for the defendant under leave reserved raises the following questions: (1) whether the defendant has violated any duty of care owed by it to the plaintiff, and (2) whether, if there was such a violation, it caused the injuries of which the plaintiff complains. The plaintiff contends that, irrespective of what caused the excessive accumulation of gas in the furnace and flues, the explosion was caused by the right angle or ‘T’ connection and that the installation of this type of connection by the defendant was a breach of duty owed to the plaintiff. The plaintiff also contends that the explosion could have been found to be caused by the defendant's improper cleaning of the burner in the furnace. But, as will presently appear, we are of the opinion that the evidence fails to show that the explosion was caused by the defendant's improper cleaning of the burner, and the issue narrows down to whether the evidence would warrant a finding that the connection installed by the defendant was a breach of a duty owed to the plaintiff, and, if it was, whether it was causally related to the explosion.

We shall deal with the latter question first. The evidence on this issue came entirely from experts. One expert, Hesselschwerdt, called by the plaintiff, testified that ‘There is a possibility that with the ignition of this gas heater * * * a tongue of flame, or an incandescent spark of carbon could have gone up conceivably through * * * [the] stack pipe, out into the main breaching * * * and caused an explosion somewhere in * * * [the] line,’ that if ‘the right angle connection were not there, there would be a longer travel for that spark to become extinguished, and only the products of combustion could have gone into the breaching.’ On cross-examination this witness qualified this testimony by saying that on the facts assumed by him as the basis for his opinion it was not possible that a tongue of flame could extend up through the heater and into the stack, and that there would be no more ‘than a speculative possibility that any spark would go up the stack from the water heater’ if the heater was operating normally. (There was no evidence that the water heater was not operating normally.) It may well be that this evidence leaves the issue of causation in such an atmosphere of guesswork and speculation that it would not afford the basis of a finding that there was a causal relationship between the installation and the explosion. The opinion, as qualified would seem to be no more than an ‘expression of conjecture.’ Brownhill v. Kivlin, 317 Mass. 168, 170, 57 N.E.2d 539, 540. But this evidence did not stand alone. Another expert, one Goldberg, who had had forty to fifty years experience as a master gas fitter, testified that in his opinion the right angle or ‘T’ connection was the cause of the explosion. His explanation of how the explosion occurred may be summarized as follows: Escaping gas filled up the furnace and got into the flue. Because of the right angle or ‘T’ connection it was forced down into the hot water heater. When the hot water was turned on upstairs (which started up the hot water heater) this gas was ignited and this in turn ignited the gas which had accumulated in the flue and furnace, and caused the explosion.

Whether the installation made by the defendant was one which would be likely to cause an explosion of the sort occurring here was not a matter of which the jury could be expected to know from their common knowledge and experience. The subject was a proper one for expert testimony. Jackson v. Anthony, 282 Mass. 540, 544,186 N.E. 389;Flynn v. Growers Outlet, Inc., 307 Mass. 373, 376, 30 N.E.2d 250. On the basis of Goldberg's testimony the jury would be warranted in finding that the connection installed by the defendant caused the explosion by...

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