H. Wales Dines Co. v. Hartford City Gas Light Co.

• Decision Date: 23 February 1915
• Citation: 89 Conn. 117,93 A. 129
• Court: Connecticut Supreme Court
• Parties: H. WALES DINES CO. v. HARTFORD CITY GAS LIGHT CO.

93 A. 129

89 Conn. 117

H. WALES DINES CO.

v. HARTFORD CITY GAS LIGHT CO.

Supreme Court of Errors of Connecticut.

Feb. 23, 1915.

Appeal from Superior Court, Hartford County; Gardiner Greene, Judge.

Action by the H. Wales Lines Company against the Hartford City Gas Light Company. From a judgment for plaintiff for $1,804, defendant appeals. No error.

In October, 1912, the plaintiff entered into a contract with the city of Hartford whereby it agreed to erect upon land of the latter a pumping station for use at times of high water in the Connecticut river in connection with its sewer system, and to deliver the same complete to the city on or before a prescribed date for the contract price of $33,840 and certain additional amounts under certain conditions. By the terms of the contract the plaintiff was to do all the work and furnish all the material, and full payment of the contract price was not to be made until after completion and acceptance. The contract contained a provision for partial payments as the work progressed. But the finding does not disclose that any such were made. On May 23, 1913, when the structure was nearly, but not quite, completed, and work upon it was in progress, an explosion occurred in its basement, by force of which it was seriously injured. The plaintiff repaired the damage thus caused, and this action was brought to recover the cost thereof.

The defendant is, and long has been, engaged in the manufacture, distribution, and sale of illuminating gas. Its manufacturing plant is located near the pumping station, and its distribution mains and pipes extend underground through Potter street, adjoining which both the plant and station are situated. A city sewer also extends through the street. At the time of the explosion this sewer had an open connection with the basement of the pumping station where the explosion occurred.

The plaintiff alleged, and claimed to have established: (1) That the explosion was caused by illuminating gas escaped from the defendant's plant or conduits into the sewer, or there given off by by-products of the defendant's works similarly escaped or permitted to flow into the sewer, and thence escaped through the open passage into the basement of the pumping station; and (2) that the presence of this gas in the sewer and basement was due to the defendant's negligence.

Upon the trial the plaintiff offered one Phelps as a witness to testify to the extent of the damage done to the station by the explosion as furnishing a basis for the assessment of damages. This evidence was objected to upon the ground that, as the building stood upon land of the city of Hartford, its ownership was in the city, and not in the plaintiff, and that, therefore, the plaintiff could not recover for the injuries to it or to the materials which had gone into its construction. The evidence was admitted.

The plaintiff also offered Prof. Gill as an expert witness, and he testified at length touching the presence of illuminating gas in the sewer, and concerning drip oil and wash-water, by-products of gas manufacture, and as to the character of a certain liquid produced and identified as having been obtained from the sewer and pronounced by him drip oil. He testified that he arrived at this conclusion by applying the tests of smell, appearance, behavior under distillation and specific gravity. Upon cross-examination counsel produced a can of liquid, not identified, but said to be a substance used or produced in the defendant's process of gas manufacture, and asked the witness to smell of it and say whether or not it was drip oil. Upon objection the inquiry was excluded as not being proper cross-examination.

John T. Robinson and Francis W. Cole, both of Hartford, for appellant. William F. Henney, of Hartford, Cornelius J. Danaher, of Meriden, and Stewart N. Dunning, of Hartford, for appellee.

PRENTICE, C. J. (after stating the facts as above). The defendant complains of the court's refusal to direct a verdict in its favor, certain portions of the charge, and two rulings upon the admission of testimony.

The motion for the direction of a verdict was properly denied. The issues involved the determination by the jury of the cause of the damage alleged to have been done to the pumping station and the defendant's legal responsibility for that cause. The plaintiff averred, and offered testimony, covering between 500 and 600 pages of the printed record, to establish that the cause was illuminating gas escaped into the public sewer from the defendant's works or conduits, or given off by other products of the defendant's gas manufacture similarly escaped, and that the presence of this gas in the sewer was due to the defendant's negligence. These propositions the defendant undertook to refute. The first of the two propositions was the fundamental one. If established, the evidence pointed the road to the second so clearly that the jury might well take it. The evidence offered to establish this first was circumstantial, as distinguished from direct, but was none the less competent on that account, and it was of such a character that an eminent expert did not hesitate to assert and stoutly maintain that the cause of the explosion was illuminating gas. This evidence was sufficient to entitle the plaintiff to go to the jury upon it unless we are prepared to say that the conclusion contended for was one which a jury could not reasonably accept. The evidence does not justify us in taking that extreme position. The case is one presenting not so much a conflict of direct testimony as a disagreement in the inferences to be drawn from facts established. Here the conflict is indeed a sharp one, but it is for the most part one of reasoning from circumstances and conditions to conclusions. The question for the jury was not so much what of direct evidence to believe as of what scientific theory to adopt or inferences of fact to draw. This is a field which we should enter upon with caution, lest we forget how circumscribed our office therein is, and be misled into setting up our own judgment as furnishing the standard for the determination of sane reasoning.

A considerable number of objections are addressed to the charge. No one of them directly concerns the law applicable to the case. Apparently the defendant can find no criticism of the court's instructions as to the controlling principles of law. Its criticisms all relate to that part of the charge in which the claims of the parties based upon the evidence are summarized, and the attention of the jury called to the particular portions of the evidence relied upon in support of the several claims. This part of the charge discloses a painstaking attempt on the court's part to assist the jury by an orderly statement of these claims and of the reasons therefor as advanced by counsel.

A few of the assignments of error, in effect, accuse the court of partiality in certain of its statements of claims and evidence, in its assumption of facts not established, and in its disparagement, express or implied, of the defendant's contentions. Our examination of the charge in connection with the evidence satisfies us not only that these accusations are unfounded, but also that the court was eminently successful in preserving an attitude of strict impartiality and fairness. Its effort plainly was to submit the case just as counsel had presented it, and it requires an acutely critical interpretation of the court's language and subtle refinement of criticism to give color to any other view. These criticisms aside, the assignments of error touching the charge all gather about two propositions: (1) That the jury were, in...