Lewis v. Boston Gaslight Co.

• Decision Date: 29 February 1896
• Parties: LEWIS v. BOSTON GASLIGHT CO. GOODNOW v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 411

43 N.E. 178

LEWIS

v.BOSTON GASLIGHT CO.

GOODNOW

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 29, 1896.

Exceptions from superior court, Suffolk county; Robert R. Bishop, Judge.

Actions by Albert Lewis and by Daniel Goodnow against the Boston Gaslight Company. There was a verdict in each case for plaintiff, and defendant excepts. Overruled.

E.B. Goodsell, for plaintiffs.

W.E.L. Dillaway and James P. Parmenter, for defendant.

FIELD, C.J.

These are two actions of tort to recover damages for injuries caused to the buildings of the plaintiffs by an explosion of illuminating gas in a store on the side of Mercantile street in Boston opposite to the buildings of the plaintiffs. The explosion took place on December 15, 1888. The gas escaped from the defendant's main pipe, which had been laid in Mercantile street, and which was found broken; and the evidence was that the break was caused by the subsidence of the soil under the pipe at the place of fracture, and that the gas had entered the store from the pipe through the fracture by underground passages in the soil. The main was laid in the year 1881. The street was accepted by the city in the year 1856. The contention of the plaintiffs is that Mercantile street had been built upon a cob wharf or log wharf where there had been a dump, and where dirt and rubbish of all sorts had been thrown in on top, and that the main was negligently and carelessly laid, and had been negligently and carelessly maintained by the defendant. The jury returned verdicts for the plaintiffs, and the only exceptions are to the admission of certain evidence.

The testimony of the witness Grover, which was first admitted against the objection of the defendant, was, in effect, that for some time before the accident he had seen holes and depressions in the street near the place of the accident, and that there seemed to be a settling down of the street. There was no evidencethat the defendant was notified of this. But the nature of the holes and depressions described by the witness was such that it was for the jury to say whether the defendant did not know of them, or by the exercise of due care would not have known of them, and whether they did not indicate that the soil in the street was likely to settle or to be washed out and thus cause the main pipe to break or become loose in the joints. This witness also testified, against the objection of the defendant, that he smelt gas in the street, near the place of the explosion, at different times before the accident, and that he had notified the defendant of the smell of gas, and that he saw people digging there for breaks in the gas pipes, and that their tools were branded “B.G.L. Co.,” and that this was the mark on the tools of the men who came down to stop the leaks of gas after he gave notice. All this testimony had some tendency to show that the company knew that the gas pipe at this place frequently leaked, and that these leaks might be caused by the settling of the pipe in consequence of the subsidence of the soil in which the pipe had been laid. We think that the testimony of this witness was properly admitted. If any of it was somewhat remote with reference to the occasions testified to, it was still within the discretion of the presiding justice to admit it. The testimony of the witness McMillan is of the same character as that of Grover, and was properly admitted. The defendant also...