Nugent v. Boston Consol. Gas Co.

• Decision Date: 19 March 1921
• Citation: 238 Mass. 221,130 N.E. 488
• Parties: NUGENT v. BOSTON CONSOL. GAS CO. SAME v. EDISON ELECTRIC ILLUMINATING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 221

130 N.E. 488

NUGENT

v.BOSTON CONSOL. GAS CO.

SAME

v.EDISON ELECTRIC ILLUMINATING CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 19, 1921.

Exceptions from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.

Actions by Mary T. Nugent, administratrix, against the Boston Consolidated Gas Company and against the Edison Electric Illuminating Company. Verdicts for plaintiff, and defendants except. Exceptions in each case overruled.F. W. & E. R. Mansfield, of Boston, for plaintiff.

Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone, of Boston, of counsel), for defendant Edison Illuminating Co.

W. I. Badger and W. I. Badger, Jr., both of Boston, for defendant Boston Consol. Gas Co.

BRALEY, J.

The plaintiff's intestate, a boy 14 years of age, whose due care is not questioned, while standing in the street was blown into the branches of a near-by tree by an explosion of illuminating gas, where he clung or hung for a few minutes, and then dropped to the ground, either lifeless, or unconscious, and was pronounced dead by the medical examiner upon his arrival. The declaration in each action is in two counts, one for conscious suffering, and one for death under R. L. c. 171, § 2, as amended by St. 1907, c. 375, and the jury having returned a verdict for the plaintiff on each count, the cases are here on the exceptions of the defendants. But as the contentions of the Gas Company relate solely to damages, and to the allowance of interest on the verdict under the count for death, questions which are common to both cases, we shall first consider the Edison Company's exceptions to the refusal of the presiding judge to direct a verdict for the company, and his denial of the rulings requested, and to certain portions of the instructions, and to the admission and exclusion of evidence. It appeared on abundant evidence that for a long time prior to the explosion a strong persistent odor of illuminating gas had been prevalent in the vicinity of the accident.

The facts of the explosion even if the cause of ignition never has been ascertained, and that this defendant owned and maintained in the vicinity cement or concrete conduits, some 13 in number, with manholes, the covers of which were blown off, were uncontroverted. The jury could find that in one of these manholes gas had accumulated from a leak in a ruptured gas pipe directly under and in contact with the conduit, which by reason of its location and use, as fully described in the record, was so built as to extend diagonally across the gas pipes which were united at this point by a ‘four-way connection’ referred to throughout the trial as a ‘cross.’ The plaintiff contends that the dangerous and unsafe condition of the gas pipe was caused by the improper construction and negligent maintenance of the conduit. It had been put in some six or seven years before the accident, and after its construction the street had been resurfaced and paved and car tracks installed, over which cars were operated. The jury could find that the conduit weighing about 2 1/4 tons had been so built as to rest directly over and within six inches of the gas pipes, under which earth had been more or less excavated, and that instead of being a solid mass of bonding the concrete had been moulded in layers leaving seams. It also could be found that a joist had been placed under the middle of the cross by the Edison Company, and that the conduit as it slowly settled transmitted the load of passing street cars, while its continuous vibration, especially when the ground was frozen, caused an unequal subsidence, and if the conduit moved laterally the pipes below would vibrate correspondingly. If the conduit sank unevenly the unequal strain on the pipes would tend to produce a rupture, and the pipes being supported in the middle by the cross any weight on either side of the point would act as a lever prying them apart. And as the jury further could say a trench had been dug by this defendant under the cross, and insufficiently back filled, ‘it would have less supporting power and would settle more readily under a load * * * than if the conduit had been separated a little from the gas pipe; it would have been better construction but it would not be safe then because the intervening space filled with earth would not distribute the load sufficiently to arch over the pipe, which would be the purpose of the earth covering, to give it a rigid effect,’ and that about ‘twelve inches was usually considered a safe distance to have between pipes and a conduit such as the one in question; that it depended upon the character of the soil,’ and that ‘six inches would be getting pretty dangerous.’

A finding that gas escaped from a break in the pipe caused in the manner just referred to, and that it was the only reasonable and satisfactory explanation of the leakage, and consequent explosion, was warranted. Koplan v. Boston Gaslight Co., 177 Mass. 15, 58 N. E. 183. The defendant however urges that the work of building and placing the conduit having been performed by an independent contractor in accordance with plans and specifications approved by the wire department of the city, it is absolved from all liability. But even if permitted or licensed for its own use and benefit to build and maintain the conduit which otherwise would have been a nuisance, it could be found on the evidence that the defendant knew the street was being concurrently used by the public to which it owed the duty of due care not only in construction but of maintenance. Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 224;Igo v. Cambridge, 208 Mass. 571, 576, 95 N. E. 557. And this is true even if the location and the method of building had been approved by the commission. Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341, 79 N. E. 815,7 L. R. A. (N. S.) 729, 118 Am. St. Rep. 516. By the terms of the contract the contractor was to take his instructions from ‘the superintendent of street engineering department of the company, acting either directly or through his properly authorized agents, such agents acting within the scope of their particular duties intrusted to them.’ The superintendent also was the referee to decide all disputes between the contractor and the company, relating to the mode and details of construction and of installation of the conduit, and by express reference, underground obstructions and the supporting of gas pipes were entirely under his supervision and control.

It is settled that where as in the present case the contractor does the work in the right of the employer who retains control, and where its nature and location is such that if faultily performed the safety and welfare of persons lawfully in the street will be put in jeopardy, and injury results, the employer under whose instrumentality the work has been done is responsible. Woodman v. Metropolitan Railroad, 149 Mass. 335, 340, 21 N. E. 482,4 L. R. A. 213, 14 Am. St. Rep. 427;Blessington v. Boston, 153 Mass. 409, 26 N. E. 1113;Pye v. Faxon, 156 Mass. 471, 474, 31 N. E. 640;Flynn v. Butler, 189 Mass. 377, 388, 75 N. E. 730;Boucher v. New York, New Haven & Hartford Railroad, 196 Mass. 355, 359, 360, 82 N. E. 15,13 L. R. A. (N. S.) 1177;Garland v. Townsend, 217 Mass. 297, 300, 301, 104 N. E. 731;Hall v. Henry Thayer & Co., 225 Mass. 151, 154, 113 N. E. 644. The defendant, if through its negligence gas accumulated and remained in the manhole, is liable for the natural and probable consequences. The jury were to determine whether in the exercise of ordinary care it should have foreseen that if gas escaped it might be ignited by a natural cause, or by some person whether in the employment of the Gas Company, or a traveller, even if such person or the company also might be liable for negligence. Feneff v. Boston & Maine R. R., 196 Mass. 575, 82 N. E. 705.

The plaintiff's action against this defendant is on grounds entirely independent of her action against the Gas Company, and the admissions of that company, or proof of its negligence, or unauthorized acts, or responsibility therefor to the intestate is not a defence. Koplan v. Boston Gaslight Co., 177 Mass. 15, 58 N. E. 183. The defendant having placed its conduit in a public way was bound thereafter to use due care in maintenance not only under the conditions of travel existing when the conduit was built but coming into existence afterwards, whether by resurfacing or paving of the street, or the establishment of car tracks. Derry v. Flitner, 118 Mass. 131, 134. And the instructions that ‘a company which contracts to have work done, if that work is of a nature which will cause danger to outside persons, persons who are not parties to the contract, then it is the duty of the party, not the contracting party, but the other party, to use reasonable care to see that measures are taken which will not endanger the safety of third persons, the public,’ and ‘after it is completed there should be reasonable care used in the maintenance of it, * * * reasonable precautions to see that if it is a source of danger there, that third parties, outside parties, shall not receive harm or injury. It is a question of reasonable care,’ accurately and clearly stated the law. The jury doubtless could find that in the construction of the conduit there were deviations from the plan as approved. But the judge correctly said that deviations would not be evidence of negligence unless they were of a material and substantial character actually contributing to the escape of gas. Grier v. Guarino, 214 Mass. 411, 101 N. E. 981.

The violation of a statute or ordinance is only evidence of negligence for the jury. It is not conclusive. Finnegan v. Winslow Skate Mfg. Co., 189 Mass. 580, 76 N. E. 192. It being plain that having been laid and maintained in the street without the permission of the city the gas pipes constituted a nuisance, the defendant urges that the negligence of the Gas Company prevents...