Nugent v. Boston Consolidated Gas Co.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation238 Mass. 221
PartiesMARY T. NUGENT, administratrix, v. BOSTON CONSOLIDATED GAS COMPANY.
Decision Date18 March 1921

November 19, 1920.

Present: RUGG, C.

J., BRALEY, CROSBY & PIERCE, JJ.

Negligence, In construction and maintenance of conduit under highway Independent contractor, Of gas company, Causing death. Joint Tortfeasor. Practice, Civil, Actions tried together Exceptions. Verdict. Evidence, Opinion: expert; Relevancy and materiality. Damages, In tort. Interest. Clerk of Courts.

At the trial of an action by an administrator against an electric company for the causing of conscious suffering and death of the plaintiff's intestate resulting from an explosion of gas which had escaped by reason of what the plaintiff alleged was negligent construction and maintenance of a concrete conduit under a highway and above a junction of gas mains, there was evidence tending to show that the conduit was built six or seven years before the explosion; that it weighed about two and one quarter tons and rested directly over and within six inches of the gas pipes, under which earth had been excavated to some degree and back filled insufficiently by the electric company; that it was not a solid mass of bonding, the concrete having been moulded in layers, leaving seams; that under the junction of the gas mains the electric company had placed a joist; that, after the installation of the conduit, the street above had been resurfaced and paved and street car tracks and street car traffic installed; that the conduit had slowly settled and had transmitted to the gas mains the load of passing street cars with vibrations especially when the ground was frozen, in such a way as in the circumstances to bring upon the mains an unequal vibrating strain tending to pry them apart. Held, that

(1) A finding was warranted that the only reasonable and satisfactory explanation of the leakage of gas and the consequent explosion was a break in the gas pipe due to the construction and maintenance of the conduit;

(2) A finding was warranted that, in the exercise of ordinary care, the electric company should have foreseen that, if gas thus was caused to escape, it might be ignited; upon which finding the electric company should be held liable, whether the gas was ignited by a natural cause or by some person in the employ of the company owning and controlling the gas mains or by a traveller.

At the trial above described, it appeared that the conduit was constructed and installed by a construction company in accordance with plans and specifications approved by municipal authorities and under a contract with the electric company which contained provisions that the construction company should take its instructions from the superintendent of the street engineering department of the electric company, acting either directly or through his properly authorized agents, such superintendent to be the referee to decide all disputes between the construction company and the electric company relating to the mode and details of construction and installation of the conduit and, by express provision, underground obstructions and the supporting of gas pipes to be entirely under his supervision and control. Held, that

(3) The construction company built the conduit in the right and under the control of the electric company;

(4) The nature and location of the conduit being such that, if the work of installing it was done faultily, the safety and welfare of persons lawfully in the public way would be put in jeopardy, the electric company was liable for personal injury to and death of a traveller on the highway resulting from negligent construction of the conduit as a proximate cause;

(5) The electric company, having placed its conduit in a public way, was bound thereafter to use due care in its maintenance not only under the conditions of travel existing when the conduit was built, but also under those coming into existence afterwards, whether through the resurfacing or the paving of the street or the establishment of the car tracks.

The action against the electric company above described was tried at the same time with an action by the same plaintiff against the gas company for the causing of conscious suffering and death of the intestate, the plaintiff alleging therein that the gas which exploded "was allowed to escape through the negligence of" the gas company, "its agents or servants." The electric company requested rulings to the effect that the gas company was liable by reason of negligence on its part; rulings to the effect that the gas company was liable and the electric company was not; rulings to the effect that the gas company was a trespasser and was unlawfully maintaining its pipes in the highway, and rulings to the effect that such unlawful maintenance of pipes made the gas company solely liable. The rulings were refused subject to exceptions by the electric company. Held, that

(6) Neither admissions of the gas company, proof of its negligence or unauthorized acts nor its responsibility therefor were a defence available to the electric company;

(7) A finding was warranted that the defendants in the two actions were joint tortfeasors, in which case neither could escape liability for its own negligence because of negligence of the other;

(8) Even if the gas company was a trespasser and unlawfully using the highway, the electric company was not excused from the consequences of its own negligence if that was proved to the satisfaction of the jury;

(9) The actions being separate, although tried together, the electric company could not complain of refusals to give rulings bearing upon the liability of the gas company nor of the giving of rulings which it contended were too favorable to that company.

At the trial of the action against the electric company above described, there was evidence tending to show that, in the construction of the conduit, there were deviations from the plans which had been approved by the municipal authorities, and the judge instructed the jury that such deviations would not be evidence of negligence unless they were of a material and substantial character actually contributing to the escape of gas. Held, that the instruction was correct.

At the trial together of the actions above described, a claim agent of the gas company, who had been called by the plaintiff, was permitted to testify in cross-examination by the gas company, that he had been instructed "many years ago" to investigate and ascertain the cause of leaks in gas pipes for the purpose of making repairs, and that for twenty-nine years, whenever leaks were reported, he made such investigations, that he had investigated the cause of the explosion in question, was at the manhole shortly after it occurred, saw the employees of the gas company excavating and examined the cracks in the gas pipe underneath the conduit and the construction of the conduit and its location, that resting of the ties of the street railway on six inches of frozen earth, all pressing upon the conduit, and the vibrations caused by the passing cars would be sufficient to cause the break. Held, that a finding was warranted that the witness was qualified as an expert; and that his testimony was competent.

An exception by the electric company to the admission of testimony offered by the gas company at the trial above described, that, whenever notice was received from the city that a street where gas mains were laid was to be resurfaced, its practice was "to bar over each and every joint, and if there should be any trace of gas an opening is made and the joint driven up," must be overruled, as the evidence was admissible as between the gas company and the plaintiff on the question of its negligence.

An exception to the admission of evidence at a trial will not be sustained where it appeared to be admissible when it was offered and admitted, although afterwards it became apparent that it was inadmissible because it was hearsay, the proper method for the party harmed by such evidence to adopt in protecting his rights being by a motion to strike out the evidence when its inadmissibility was disclosed.

At the trial above described, testimony of experts called by the plaintiff to the effect that the condition above described "caused the break" and that the cause of the break was the "weight of the conduit on top of the cross, the loose ground under the cross, and the settling and the vibration," was competent and admissible.

It was immaterial, in the action against the electric company, whether that defendant's property had been damaged by the explosion.

Having properly instructed the jury, at the trial of the actions above described, that, if they found for the plaintiff in both actions upon the counts for conscious suffering, they should find the same amount in each action, and that they should not "worry or feel at all disturbed that there will be any collection of that money against both, that both will have to pay it. It can't be done . . . the law will see to it there is only one payment of the sum," the judge could not be required to add,

"it is important for the jury to know that the plaintiff may not collect the amounts of the verdicts from both defendants."

At the trial together of two actions under R.L.c. 171, Section 2, as amended by St. 1907, c. 375, each against a separate defendant by the same administrator for the causing of the death of the plaintiff's intestate, if both defendants are found liable, the question of the degree of culpability which under the statute is the standard for determining the amount of the verdicts, is for the jury and, while the amount of the verdict in each case cannot exceed $10,000, the sum of the two verdicts may...

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