Morrow v. Otis

• Citation: 251 Mass. 65,146 N.E. 363
• Parties: MORROW v. OTIS et al.
• Decision Date: 30 January 1925
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 65

146 N.E. 363

MORROW

v.OTIS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 30, 1925.

Exceptions from Superior Court, Suffolk County; F. J. MacLeod, Judge.

Action of tort by Katherine M. Morrow against Alice G. Otis and others to recover for injuries caused by escaping gas. Verdict was directed for defendants, and plaintiff excepts. Exceptions overruled.Charles S. Walkup, Jr., of Boston, for plaintiff.

L. C. Doyle, of Boston, for defendants.

SANDERSON, J.

This is an action of tort to recover damages for injuries caused by escaping gas. There are three counts, based upon negligence of the defendants, in permitting gas and heating appliances to become defective, to be and remain out of repair, and in knowingly letting to the plaintiff a room wherein the gax fixtures and appliances were defective.

The plaintiff was the only witness called. She hired of the defendants a room, lighted and heated by gas, in a building owned by them, for which she paid rent in advance. When the agreement was made, the plaintiff noticed that the gas fixture in the room was an old one, and asked whether it was all right. The defendant Mrs. Otis said, pointing to the fixture, ‘This is a safety catch here; perfectly all right;’ that a man who had ‘fixed the gas fixture’ says ‘it is all right; he ought to know.’ The plaintiff occupied the room two nights. On the first she turned on the gas for lighting the room, but not that for heating, and there was no trouble from escaping gas. The next night she turned on the gas for heating at about 8 o'clock, and left it on about three hours, when she turned it off at the safety catch near the wall, which Mrs. Otis had told her turned the gas off from the stove. The plaintiff thought there was no other shut-off, but did not know. After turning off the gas, she went to bed and upon awaking in the morning was not feeling well and fell when she tried to get up. Mrs. Spear, an occupant of the next room, who heard her fall, came with Mrs. Otis to the plaintiff's room and said that upon opening her (Mrs. Spear's) door, the hall was full of gas. Mrs. Spear then pointed to the gas jet in the plaintiff's room and said, ‘This is where the trouble is;’ but she did nothing to it. The night after the accident Mrs. Otis said to the plaintiff that there had been a man there to ‘fix [the gas fixture], and he said it was all right’; also, that the room ‘won't be occupied again until it is all right.’ A few days later the plaintiff visited the room in company with Mrs. Otis and said, ‘Well, you have had the gas fixture all fixed up new now,’ to which she received no reply. At the close of the plaintiff's case the court, upon motion, directed the jury to return a verdict for the defendants. The plaintiff's exception to this order presents the only question for our consideration.

[1] No one testified that the gas fixture was defective or out of repair either before or after the plaintiff was made ill, but if it be assumed that upon the evidence the jury would have been warranted in finding that the injuries to the plaintiff were caused by the escape of gas from a defective fixture in her room-a...