Pine Bluff Water & Light Co. v. Schneider

• Decision Date: 22 February 1896
• Citation: 34 S.W. 547,62 Ark. 109
• Parties: PINE BLUFF WATER & LIGHT CO. v. SCHNEIDER
• Court: Arkansas Supreme Court

34 S.W. 547

62 Ark. 109

PINE BLUFF WATER & LIGHT CO. v. SCHNEIDER

Supreme Court of Arkansas

February 22, 1896

APPEAL from Jefferson Circuit Court, JOHN M. ELLIOTT, Judge.

STATEMENT BY THE COURT.

The facts proved in this case were in substance as follows: Fred Schneider, a merchant tailor in the city of Pine Bluff, owned a stock of goods pertaining to that business. The Pine Bluff Water & Light Company was engaged in the business of manufacturing and supplying illuminating gas to the city of Pine Bluff and its inhabitants. One of the branch pipes of said company extended from a main pipe in the street under the store house in which the appellee did business, for the purpose of supplying the building with gas. The pipe under the store of appellee was broken by certain parties plowing up the street for the purpose of improving the same. The gas escaped under the building, and also entered the storeroom above. In this room, Allie Strauss and John Hammert employees of Schneider, were at work, assisting him in his business as tailor. Hammert was employed as a maker of trousers, and was paid by the garment. Strauss was paid by the week; and they both worked for Schneider in this storeroom. When they detected the presence of gas in the room, Hammert lighted a match, and began to look for the leak. The lighted match, coming in contact with the free gas produced an explosion, which injured the goods of Schneider. This action was brought by Schneider against Hammert and the Water & Light Company. He alleged that the Water & Light Company negligently allowed the gas to escape, and that Hammert carelessly ignited the gas with a match. The Water & Light Company denied that it was guilty of negligence, and alleged that the injury was occasioned by the negligence of Hammert, a servant and employee of plaintiff. The testimony bearing upon the question of contributory negligence was, in substance, as follows: The plaintiff, Schneider, testified that Strauss and Hammert were both employed by him, and worked in his store. At the time the explosion occurred plaintiff had gone to dinner. He left Allie Strauss in charge of the store during his absence. Hammert, he said, was not in charge, and had no control over the store, further than to work therein.

Allie Strauss, who had charge of the store at the time of the explosion, testified for plaintiff that the gas had accumulated under the store, and, while plaintiff was absent at dinner, it began to enter the store; that Hammert then said he would take a match and find the leak. He was then interrogated as follows: "Q. Did he ask your permission? A. No, sir. Q. Did he say anything about it? A. Yes, sir; he said he would investigate, and see what the trouble was, and he took a match and found the place." Cross-Examined. "Q. How far was he from the leak when he struck the match? A. I should say about four or five feet. * * * Q. You knew he was looking for the leak? A. Oh, yes, sir. Q. Why didn't you tell him not to do that? A. Because he had done that several times before. Q. You both did that several times before? A. Yes, sir, and found the leak. Q. You were in the habit of doing that? A. Yes, sir. You never undertook to prevent it? A. No, sir. You thought it all right? A. Yes sir. Q. You thought it a very good idea? A. Yes, sir, but I never said anything about it. Q. You were willing for him to do it? A. Yes, sir. Q. You knew there was an escape of gas in the store? A. Yes, sir, and he was trying to find it."

The first instruction given by the court was as follows: "The court instructs the jury that the defendant company was bound to keep such reasonable inspection of its pipes as would enable it to detect when there was an escape of gas as would lead to danger of explosion."

There was a verdict and judgment against both Hammert and the Water & Light Company, from which judgment the Water & Light Company has appealed.

Reversed and remanded.

F. G. Bridges, for appellant.

1. Plaintiff's instruction No. 1 is erroneous. It exacts from gas companies far greater care than the law requires. They are only liable for want of ordinary care and skill taking into consideration the character of their business. 1 Thompson on Neg. p. 108, sec. 11; 3 C. B. 1; 20 N.Y.S. 168; 33 N.E. 523; 158 Mass. 260; 122 Mass. 219; 8 Gray (Mass.) 123. Where the pipes are properly laid, and broken by third persons, the company is not guilty of negligence until it has notice and a reasonable time to repair. 1 Allen (Mass.), 343; 117 Mass. 539; 26 Gas J. 946; 8 Gray, 123; 2 Fost & Fin. 437; 3 Allen, 410; 20 N.Y. 168; 65 Hun, 378.

2. Instructions 4 and 5 are erroneous, because (1.) they hold defendant liable for any leaks in a whole block, irrespective of the fact whether any of such leaks caused the explosion. Instructions must be restricted to the issues made by the pleadings, and to the evidence under said issues. Sackett, Inst. to Juries, sec. 19; 52 Ark. 125; 72 Ill. 141; 68 Ill. 545. And (2) they assume facts not authorized by the evidence, such as notice, etc. 24 Ark. 251; 45 id. 256; 42 id. 3; 23 id. 289.

3. The negligence of Hammert, the employee of appellee, barred his right to recover. His employee's contributory negligence was his own. 36 Ark. 371; id. 41, 451.

4. Hammert's negligence is imputable to appellee. 3 Allen, 543; 117 Mass. 539; 1 Thomps. on Neg. p. 110; 8 Gray, 123; 14 Gas J. 606; 8 Am. & Eng. Enc. Law, P. 1274; 46 Ark. 523; 38 id. 557.

5. Instruction 3 for plaintiff is erroneous in holding defendant liable for the conduct of John Hammert. Even if appellant was guilty of negligence, the act of Hammert was an intervening efficient cause which broke the causal connection between the original wrong and the injury, and thus became the proximate cause of the injury, and appellant is not responsible. 71 N.Y. 29; Bishop, Non-Cont. Law, sec. 42; 1 Sh. & Redf. Neg. sec. 32; 99 Ind. 16; 70 Pa.St. 86; 57 N.H. 627; 58 Ark. 157; 74 Ind. 449; 139 U.S. 237; 65 Tex. 274; 105 U.S. 252; 5 Exch. 242; 7 C. P. 253; 2 Dow. H. L. Cas. 390; 103 Mass. 507; 98 id. 211; 3 Q. B. D. 536; 3 Allen, 343; 117 Mass. 539; 1 Thomps. Neg. p. 110.

W. T. Wooldridge, H. King White and N. T. White for appellees.

1. The evidence shows the grossest negligence on the part of the company. The officers knew of the excavations, and had ample time to prevent the accident. A gas company is bound to exercise such care, skill and diligence in all its operations as is called for by the delicacy and difficulty of the nature of its business. 8 Am. & Eng. Enc. Law, p. 1273; 57 Ga. 28; 8 Gray (Mass.), 123; 3 Allen (Mass.), 410; 4 F. & F. 324; 7 Am. & Eng. Enc. Law, p. 520; 1 Thomps. Neg. p. 108, sec. 11.

2. Both the company and Hammert were liable. One who has suffered from the joint tort of several persons may bring suit against all of them, or against any one of them. Bish. Non-Cont. Law, secs. 519, 520, 521-2. Where the injury proceeds from two causes operating together, the party putting in motion one of them is liable, the same as though he was the sole cause. He who contributes to a wrong is answerable as a doer. 15 Ark. 452; 23 id. 131; 39 id. 387; 5 Daly (N. Y.), 144. Where one sustains an injury from the separate negligence of two persons employed to do separate things, he may sue either or both. 82 Ky. 432; 4 Fos. & Fin. 354; 5 Exch. 67; 2 Thomps. Neg. p. 1070.

3. Schneider was not responsible for the acts of Hammert. Hammert was not left in possession of the property, and had no control of same. He was employed as a mechanic, working for wages, and Schneider cannot be held for his acts, over which he had no control, and which were not connected with or within the scope of his employment.

OPINION

RIDDICK, J., (after stating the facts.)

It is contended by counsel for appellant that the court erred in its charge to the jury. The first paragraph of the charge, if considered by itself, would be subject to criticism, for it might be construed to mean that the water and light company was to use such care as under all circumstances to discover gas escaping from its pipes, and that a failure to do so would constitute negligence. But, upon the question whether the jury has been misled by one or more specific instructions, all the instructions must be read together. A consideration of the entire charge in this case leads to the conclusion that the court did not intend to convey such meaning, and that it is not reasonable to believe that the jury could have been misled by it. A gas company must use due and reasonable care in the inspection of its pipes, and must repair defects in the same, whether caused by its own fault or not. When the defect or break in the pipe is caused, not by the negligence of the gas company, but by the act of a third party, and when the company has used due care in inspecting its pipes to discover defects therein, it is allowed a reasonable time, after notice of such defect, in which to make repairs. But if it has notice of a break in its pipes from which gas may escape and accumulate, and injure persons or property, it must, as soon as practicable by the use of due promptitude and diligence, secure its gas, either by cutting off the flow or repairing the break, so as to guard against such injurious consequences. To accomplish this end, the company must use a degree of care commensurate to the danger which it is its duty to avoid. If it fails to exercise this degree of care, and injury results from such negligence, the company is liable, if the person injured is free from fault contributing to the injury. Chisholm v. Atlantic Gas Light Co. 57 Ga. 28; Mississinewa Mining Co. v. Patton, 129 Ind. 472, 28 N.E. 1113, S. C. 28 Am. St. Rep. 203; Emerson v. Lowell Gas Light Co. 3 Allen (Mass.) 410; Hunt v. Lowell Gas Light Co. 8...