Koplan v. Boston Gaslight Co.
| Decision Date | 18 October 1900 |
| Citation | 58 N.E. 183,177 Mass. 15 |
| Parties | KOPLAN v. BOSTON GASLIGHT CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S. L Whipple and W. R. Sears, for plaintiff.
R. M Morse and Walter I. Badger, for defendant.
This action was brought to recover for a personal injury caused by the subway explosion of gas at the corner of Tremont and Boylston streets, in Boston, on March 4, 1897, at about half past 11 o'clock in the forenoon. The city of Boston and six business corporations--the Metropolitan Construction Company, the West End Street-Railway Company the Boston Gaslight Company, the Bay State Gaslight Company, the Edison Illuminating Company, and the Boston Electric Light Company--were joined as co-defendants in the original writ. Before the trial the plaintiff discontinued against the city of Boston, the Boston Electric Light Company, and the Bay State Gas Company. The trial proceeded against the Metropolitan Construction Company, the West End Street-Railway Company, the Boston Gaslight Company, and the Edison Electric Illuminating Company. When the plaintiff rested, the court instructed the jury that there was no evidence against the Edison Electric Illuminating Company, and a verdict in favor of that defendant was then entered. The trial again proceeded, and the case was submitted to the jury as against the construction company, the street-railway Company, and the Boston Gaslight Company. Verdicts were rendered in favor of the first two of these defendants and against the Boston Gaslight Company. The case is before us on exceptions taken by this defendant, most of which relate to the admission of evidence.
A considerable portion of the surface of the street at the intersection of Tremont and Boylston streets was bridged over with heavy plank, supported by beams underneath. Below this bridge there was a vacant space about 30 feet long from north to south, and 15 feet wide from east to west. Below that were the barrels of the subway, which at that time had been partially or entirely covered with earth. The depth under the bridge varied from 5 feet or less to 6 or 8 feet or more. There were interstices in the planking, and the gas that exploded was within this chamber. Through the chamber ran from east to west a 6-inch pipe and an 8-inch pipe of the Boston Gaslight Company, which necessarily were moved from their location in the construction of the subway. From 20 to 24 feet in length of these were exposed at the time of the accident. Within the excavation made in constructing the subway, but not within the lines of the completed subway, and not moved from their location, were also a 6-inch pipe, a 10-inch pipe, and a 24-inch pipe of the Boston Gaslight Company, and an 8-inch pipe of the Brookline Gaslight Company. There were 16 Edison conduits within the area covered by the bridge, each pipe being about 3 inches in size. The Boston Electric Light Company had also electric wires within the line of the original excavation, and there were also water pipes there, three of which had been relocated in the construction of the subway a considerable time before the accident. That there was an explosion of gas which had accumulated in this chamber beneath the planking was undisputed, but beyond that the cause of the accident was obscure. No one saw the condition below the surface of the street immediately before the accident, and no one saw or knew the exact place or cause of the discharge of gas into the chamber, or of the ignition of the gas. In pursuing the inquiry before the court, it became necessary to investigate a great number and variety of conditions, which altogether might furnish a foundation for a reasonable inference as to the culpability, if there was culpability, of any of the numerous parties who were charged with duties in regard to the safety of persons passing over this excavation.
The defendant excepted to the admission of testimony from numerous witnesses that they had noticed a smell of gas near the place of the accident at different times within three months previously. These persons were nearly all occupants of the buildings on Tremont or Boylston streets, just about the corner, so situated that there was reason to believe that the gas from this chamber might pass through the soil, and by underground openings into these buildings. Some of them testified to having noticed this smell of gas outside on the corner. Several of them testified to noticing a strong smell of gas in the basement or other portions of their premises on the morning of the explosion, and to having noticed similar smells at different times before, only not so strong. The testimony of one or two of them covered a period a little longer than three months, but the attention of the judge was not directed to any different claim of the defendant on that account. It was undisputed that notice of these smells was sent to the defendant on the morning of the explosion, before it occurred; and there was testimony that notice of similar smells at different times had previously been sent by some of these witnesses within three months before the explosion. This evidence tended to show a defective condition of the gas pipes at the place of the accident, and it had some tendency to prove that this defective condition continued until finally it resulted in such a discharge of gas as to cause to accident. The testimony of each witness is not to be considered alone, but in connection with all the other evidence. There was an excavation for the subway extending up and down Tremont street near the cellar and basement walls of these buildings. There were pipes of various kinds, with earth left more or less loosely around them, extending into these buildings, and there was testimony from numerous persons of a strong smell of gas in some of these buildings on the morning of the explosion, and of smells of gas before. If testimony introduced afterwards makes it improbable that the earlier observations of the witnesses were from the same cause as the discharge which caused the accident, that fact does not render the evidence incompetent. The jury were instructed not to regard this evidence unless they were satisfied that the odors of gas to which the witnesses testified had their origin in the cavity where the explosion occurred. We are of opinion that this class of testimony was rightly admitted. Lewis v. Light Co., 165 Mass. 411, 43 N.E. 178. The defendant also excepted to the admission of a letter written July 11, 1896, by one Carson, chief engineer of the transit commission, which was the official board charged with the duty of constructing the subway, to Addicks, the chief engineer of this defendant. The whole evidence tended to show that Carson and Addicks respectively represented the official board and the Boston Gaslight Company, and were authorized to do all that they attempted to do in their dealings with each other in regard to the subway. The letter shows that they were then considering the safety of the gas pipes where the work of constructing the subway was going on. In it Carson said, 'We shall be glad to give you or your men access to any part of the work for examination, and any suggestion you may make in regard to the gas pipes will be carefully considered.' Although the work which was then going on was not in the same section where the accident happened, Carson, as chief engineer, was in charge of the work of constructing the whole subway. Addicks, as chief engineer, was interested to have the gas pipes properly protected along the whole line of the subway, and the general subject to which the letter related pertained to the pipes along the whole line of the subway. The letter was properly received as bearing upon the defendant's conduct, to show what information it received, and what opportunities were given it in regard to inspection of the pipes and provision for the safety of all concerned. In the charge to the jury the use of the letter was strictly limited to this purpose. The testimony of Walsh that the strong smell of gas which he noticed in the basement of his store on the morning of the accident was the same as the smell from a leak in his store which occurred several months before, from gas furnished by this defendant, was excepted to on the ground that the reference to the leak was incompetent. But this reference was simply for the purpose of identifying the gas by comparison, and for that purpose was unobjectionable. Perrin, the engineer and treasurer of the construction company, was permitted to testify to conversations between himself and Addicks, the chief engineer of this defendant, referring to the section of the subway in which the explosion occurred, recommending the defendant company to have an inspector on the line of the work, to be present at all times, in case of an emergency, and thus to furnish an added element of safety, and informing him that other companies maintaining pipes and conduits on the line of the work were providing such inspectors. The entire conversations were objected to, and not any particular parts of them. They were admitted for the purpose of showing that the attention of the defendant was directed to the peculiar and unusual dangers to which the pipes were necessarily to be exposed in the construction of the subway, and to the desirability of taking precautions against these dangers. The charge of liability against this defendant included two propositions,--one that the gas which caused the explosion came from its pipes; and the other that it had failed to take proper measures to prevent such an escape of gas, or to discover it, and to protect the public from it if it should occur. As bearing upon this last proposition, information of the risk and a...
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