Reid v. Westchester Lighting Co.

• Decision Date: 13 July 1923
• Citation: 140 N.E. 712,236 N.Y. 322
• Parties: REID v. WESTCHESTER LIGHTING CO. et al.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 322

140 N.E. 712

REID

v.WESTCHESTER LIGHTING CO. et al.

Court of Appeals of New York.

July 13, 1923.

Action by John S. Reid, as administrator, etc., against the Westchester Lighting Company, impleaded with another, as to whom the complaint was dismissed. From a judgment of the Appellate Division (204 App. Div. 833,196 N. Y. Supp. 471) affirming a judgment on a verdict for plaintiff, defendant Lighting Company appeals.

Judgments reversed, and complaint dismissed.

Hogan and Crane, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Second department.

Chauncey B. Garver, of New York City, for appellant.

John A. Goodwin, Leonard F. Fish and Thomas J. O'Neill, all of New York City, for respondent.

McLAUGHLIN, J.

Action to recover damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of the lighting company in permitting the escape of illuminating gas. The intestate died on the 29th of March, 1920, at No. 12 Grand street, New Rochelle, N. Y., in a house owned by the defendant McNamara, where she had lived with her husband for about two years. The lighting company was engaged in the sale and distribution of illuminating gas, and for that purpose had a pipe in the street from which gas was supplied to consumers. It formerly had a meter in the premises in question, but it had been removed several years before, and thereafter no gas was consumed therein. At the trial the complaint was dismissed as to the defendant McNamara and the case sent to the jury to determine whether the lighting company were negligent in not shutting off the gas at the connection Between its main in the street and the service pipe running into the house. The jury rendered a vardict in favor of the plaintiff for $4,500, and the judgment entered thereon was affirmed by the Appellate Division, one justice dissenting.

[1] I do not think the evidence justified a finding that the death of the intestate was the result of asphyxiation by illuminating gas. No testimony was given by the physician who attended the intestate that in his opinion she came to her death from the cause stated. The result of the autopsy did not disclose that the intestate died from inhaling illuminating gas. The plaintiff's husband left the room where she was subsequently found about an hour before, and when he returned she was apparently unconscious, and a lamp was then burning in the room. There was evidence to the effect that she had been suffering from kidney trouble for some time. She complained of pains in her back, and went to bed shortly before her husband left that evening. When he first saw her on his return she was frothing at the mouth. Whether that were an indication of poisoning by illuminating gas did not appear, and I am of the opinion there was nothing to justify a verdict that she died from that cause.

[2] However, assuming that she did, upon the proof presented plaintiff was not entitled to recover. There is nothing to show negligence on the part of the gas company; on the contrary, there is an entire absence of evidence upon which to base a finding to that effect. The gas escaped from a leak in a pipe which protruded some 18 inches into the room where the deceased was found, the leak being in that part of the pipe which was between the floor of the room and the surface of the ground. This pipe ran to and connected with the main in the street. There was no cellar under the house, and the gas meter which had been originally installed had been removed some 15 years before, since which time no gas had been there used. The gas company, of course, was obligated, before it turned on the gas, to know that the pipes in the house were in proper condition, and that the gas, when turned on, would not escape. Beyond that, unless it assumed control of the pipes in the house, liability, in the absence of notice, did not attach to it for escaping gas. The pipes in the house were owned...