Schmeer v. Gaslight Co. of Syracuse

• Decision Date: 26 November 1895
• Citation: 42 N.E. 202,147 N.Y. 529
• Parties: SCHMEER v. GASLIGHT CO. OF SYRACUSE.
• Court: New York Court of Appeals Court of Appeals

147 N.Y. 529

42 N.E. 202

SCHMEER

v.GASLIGHT CO. OF SYRACUSE.

Court of Appeals of New York.

Nov. 26, 1895.

Appeal from supreme court, general term, Fourth department.

Action by Daniel Schmeer, as administrator of Daniel Schmeer, Jr., deceased, against the Gaslight Company of Syracuse. From a judgment of the general term (26 N. Y. Supp. 1128), affirming a judgment of nonsuit, plaintiff appeals. Reversed.

This action is brought to recover damages for the death of plaintiff's son from an explosion of gas in the building in which the plaintiff had an apartment, such explosion having occurred, as is alleged, by reason of the negligence of the defendant in permitting the gas to flow into the building without first properly testing the pipes. The answer denied any negligence on the part of the company, and set up as a further defense the contributory negligence of the deceased. The plaintiff was nonsuited at the trial, and the general term affirmed the nonsuit, and the plaintiff appeals here. The defendant is a manufacturer of gas in the city of Syracuse, and furnishes the same to all inhabitants of the city desirous of using it. The gas is supplied in the usual way, by means of mains laid underground in the streets, and connecting by means of service pipes with the different structures in which the gas is consumed. The company lays and owns the street mains and the service pipe therefrom to the inside of the cellar or basement of the buildings to be supplied. The service pipe is left by the company unconnected with the piping in a building, and the gas is prevented from flowing into it by means of a stopcock placed in the service pipe a short distance inside the curb, at the side of the street. It has been the custom of this company to permit this service pipe to be connected with the piping in a building by the owner thereof, as soon as he had made application to the company to become a consumer of the gas, and after it has supplied him with a meter, and such connection has been customarily made by a gas fitter employed for that purpose by the owner, and without giving any notice thereof to the company. In the spring of 1889 one George Young had completed the erection of a three-story brick building on the west side of North Salina street, in the city of Syracuse. The building was divided into stores on the ground floor, and into separate and independent apartments or flats above. There was one double and one single store, and there were three flats upon each of the floors above the stores. The double store had been rented by the owner to a firm named Vinney & Krause, while the single store had been rented to the plaintiff for a confectionery shop, and the plaintiff had also rented one of the flats in the second story for his family. Two of the flats on the third floor, and immediately above the flat occupied by the plaintiff, were occupied by the families of two women,-Mr. Ripple and Mrs. Bordner. The plaintiff moved into the building April 19, 1889, and the other tenants were moving in about the same time. The accident occurred that same evening. The whole building was equipped with gas pipes, but so arranged that each store and flat could be supplied with gas through a separate and independent meter. Upon the application of the owner, made about the 29th of March, 1889, the company put in the service pipe, extending into the cellar of the building through the cellar wall. The gas was excluded by means of the stopcock near the curb at the sidewalk. On the 10th of April one Steingriebe, who occupied one of the three flats on the third story, applied for a meter for his flat by signing an order book at the office of the company. Vinney & Krause, the tenants of the double store, had also, and about families of two women,-Mrs. Ripple and had in both cases been refused by the company until proper plans of the piping were furnished. These plans were subsequently furnished and the meters were then delivered. The gas was subsequently turned on by one of the gas fitters or his employé, and without notice to, or knowledge on the part of, the gas company. It had been the practice of the company for many years in Syracuse to accept and rely upon these plans, when furnished, the same as if they were a certificate by the gas fitter or plumber putting in the piping that such piping was then complete, tested, and ready to receive gas, the company itself not making any examination. It did not itself connect the meters with the piping in a house, nor itself, and directly through its own agents and employés, see to the turning on of the gas from the street mains, through the service pipe, into the building. Those who applied for the meters engaged such persons as they chose to do this work. After the meters had been supplied to this building, they were connected with the service pipe by the employés of the owner or tenants, who engaged them for the purpose. There was customarily no objection made by defendant to the turning on of the gas from the street main after the person wishing to use the gas had applied for the same to defendant and been furnished by it with a meter. The defendant, by furnishing the meter, thereby consented to the turning on of the gas by any one. In this case the defendant relied on the certificate spoken of as to the condition of the pipes. In truth, the piping in the upper hall ways had not been properly attended to before the gas was let into the building by one of the employés of the plumber or gas fitter who was engaged to attach the meter to the service pipe by one of the tenants. The ends of the pipes in the third-story hall way had not been plugged, and hence the moment the gas was turned on in the street it went, in addition to the store where it was wanted, up through the other pipes into the hall way of the third story, and escaped therefrom into that hall. The only opening at which the gas could escape was in the hall way. The hall way was also the only means of access which the tenants had to their respective flats from the street entrance. The two women tenants had not applied to the company to be furnished with gas, and did not intend to use the same in their apartments. They were using oil for illuminating purposes. After the gas had been turned on from the street on the evening in question by some one not in any way connected with the company, and some time between half after 8 and 9 o'clock, the smell of gas became noticeable in the hall way mentioned. The plaintiff's son, a young man about 18 years of age, was in the apartment hired by his father, reading, when he heard the voices of the women, and, going out into the second-story hall way, asked them what was the matter. There was then no smell of gas in the plaintiff's apartment. The boy was told of the escaping gas somewhere, and so he went upstairs to the third story, and said he would try and discover the location of the leak, and stop it until morning, and proposed to take a lamp. Mrs. Bordner, one of the tenants, said she thought a lamp would be dangerous, to which the boy assented, and then said he would take a candle, as he had seen plumbers use a candle to find a leak. He, therefore, procured one, and had it lighted, and went to a pipe in the side wall in the third story, and applied the flame to the cap of the pipe and around it, and said: ‘That is all right.’ Walking to the end of the hall, he had partly got upon a barrel lying there, when an explosion occurred, which injured the boy so that he soon thereafter died. Gas fitters do in fact use torches and candles upon some occasions in testing or searching for leaks in gas pipes. Believing that the gas company had been guilty of negligence in causing the death of plaintiff's intestate under the circumstances herein stated, the plaintiff brought this action to recover damages on account thereof.

Louis Marshall, for appellant.

Edwin Nottingham, for respondent.

PECKHAM, J. (after stating the facts).

We think it was error to nonsuit the plaintiff upon this proof. There was, in our judgment, a question for the jury to determine; the question being, whether, upon all the evidence, the defendant company had been guilty of negligence which caused the death of the deceased youth. A portion of the gas which escaped through the pipes in the third-story hall found its way into the premises of the women tenants, and occasioned them annoyance from its odor. The deceased, upon hearing of the difficulty, and in order to aid the two women in its removal, endeavored to find the location of the leak, for the purpose of stopping it with some temporary means...