Friese v. Boston Consol. Gas Co.
| Decision Date | 23 September 1949 |
| Citation | 88 N.E.2d 1,324 Mass. 623 |
| Parties | HEINZ FRIESE v. BOSTON CONSOLIDATED GAS COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 4, 1949.
Present: QUA, C.
J., LUMMUS, RONAN WILKINS, SPALDING, & WILLIAMS, JJ.
Negligence, Gas Violation of law. Proximate Cause. Evidence, Opinion: expert Matter of conjecture. Practice, Civil, Exceptions: whether error harmful. Error, Whether error harmful.
At the trial of an action for personal injuries caused by an explosion of gas in appliances installed by the defendant, the issue, whether the installation was one which would be likely to cause such an explosion, was a proper subject for expert testimony.
A finding that an improper right angle connection between the flue of a gas furnace and the flue of a nearby automatic gas water heater both installed by a gas company, was the cause of an explosion of gas accumulated in the equipment was warranted by testimony by an expert that the right angle connection forced gas which had escaped into the furnace and its flue into the flue of the heater and thence into the heater, where it was ignited when the heater started to operate.
A gas company, in the installation in a residence of an automatic gas water heater near a furnace having a gas burner, owed to a member of the household a duty to use reasonable skill and judgment in the circumstances, which included a consideration of the highly explosive quality of gas and of the serious consequences which might ensue if proper precautions were not taken to guard against an explosion.
A "gasfitting" regulation, promulgated by the building and health commissioners of the city of Boston pursuant to the provisions of St.
1938, c. 479, that "no flue piping of any appliance shall be connected to the flue piping of any other appliance by the use of right angle connections; such connections shall be made with a Y or 45-degree fitting," was aimed at the prevention of explosions; and a violation of the regulation could be shown as evidence of negligence of the defendant at the trial of an action against a gas company for personal injuries sustained by one to whom the defendant owed a duty of due care in making installations of appliances and caused by an explosion of gas following the installation by the defendant of a gas water heater with its flue connected to the flue of a gas furnace by "a short right angle connection."
A finding of negligence of the defendant at the trial of an action against a gas company for personal injuries caused by an explosion of gas accumulated in equipment installed by the defendant consisting of a gas furnace and a nearby gas water heater whose flues were connected by a right angle connection, would have been warranted by testimony of an expert that the right angle connection caused a "turbulence" in the flues and was the cause of the explosion and by evidence that such installation violated a valid "gasfitting" regulation prohibiting right angle connections.
Mere proof of a gas explosion in a gas furnace plus evidence that an explosion could be caused by an improper cleaning of the furnace would not warrant a finding that it had been improperly cleaned.
Error in submitting to the jury a ground of liability as to which there was no evidence warranting a verdict for the plaintiff was prejudicial to the defendant where another ground supported by evidence also was submitted, there was a general verdict for the plaintiff, and it could not be ascertained by this court on which ground the verdict rested.
TORT. Writ in the Superior Court dated March 19, 1946. The case was tried before Warner, J.
In this court the case was argued in May, 1949, before Qua, C.J., Dolan, Spalding, & Williams, JJ., and after the resignation of Dolan, J., was submitted on briefs to Lummus, Ronan, & Wilkins, JJ.
M. Michelson, (A.
J. Bronstein with him,) for the plaintiff.
C. C. Petersen, for the defendant.
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's 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 ten 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 seven 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 . . . but . . . 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 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...
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