Smith v. Boston Gas Light Co.
| Decision Date | 09 September 1880 |
| Citation | 129 Mass. 318 |
| Parties | Philip Smith v. Boston Gas Light Company |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 14, 1879
Suffolk. Tort for personal injuries occasioned to the plaintiff, a minor under five years of age, bye the inhalation of gas, which escaped from the defendant's pipes. Trial in this court, before Ames, J., who, after a verdict for the plaintiff, reported the case for the determination of the full court. If, upon the facts, which appear in the opinion, there was any evidence to be submitted to the jury upon the questions of due care on the part of the plaintiff or those in charge of him, and of any negligence on the part of the defendant which caused the injury, and if the rulings were correct, judgment was to be entered on the verdict; otherwise, judgment for the defendant, or a new trial ordered.
Judgment on the verdict.
C. P Greenough, for the defendant.
S. A B. Abbott, for the plaintiff.
OPINION
The plaintiff is a child of tender years. The escape of gas which caused the injury to him at the same time caused the death of his mother. The two occupied the same room and bed. Upon the question of the due care of the plaintiff and of his mother, who then had him in charge, the evidence presents as full a disclosure of the facts as the nature of the case allows. The plaintiff himself is too young to testify, and it does not appear that there is any other person living who can be called to give an account of them. The door of the room in which these persons slept was broken open in the morning, and the plaintiff was found insensible by the dead body of his mother. The escaping gas came from a crack in the pipe laid by the defendant corporation through Thacher Court. There were no gas-fixtures in the room; and there was no evidence that the plaintiff or his mother had notice of escaping gas, or was conscious of its presence in the room, in time to leave or to take any precautions to prevent the consequences by opening doors or windows. There was evidence that, on the day before the accident, there was no smell of gas in the court; and there was also evidence that the mother was a sober and prudent woman. The jury may well have found that the crack in the pipe and the escape of gas first occurred some time during the night of the accident; and would be justified in finding that neither the plaintiff nor his mother was chargeable with want of ordinary care in preventing or escaping the result.
The burden is upon the plaintiff to show that he and his mother were in the exercise of due care in respect to the occurrence from which the injury arose. But this, as was said in Mayo v. Boston & Maine Railroad, 104 Mass. 137, 140, although, in form, a proposition to be established affirmatively, need not be proved by affirmative testimony addressed directly to its support. It may be shown by evidence which excludes fault, and, in the case at bar, there is nothing which excludes the inference that both mother and child on that night went to bed and to sleep in the usual manner, with nothing to indicate that there was unusual exposure to injury; and that they were suffocated in their sleep by the gas which escaped from the defendant's pipes. If this was so, they were clearly in the exercise of such care as prudent people ordinarily use under circumstances of similar exposure to injury from hidden and unsuspected causes. Craig v. New York, New Haven & Hartford Railroad, 118 Mass. 431. Commonwealth v. Boston & Lowell Railroad, 126 Mass. 61, 68 Hinckley v. Cape Cod Railroad, 120 Mass. 257.
The judge ruled at the trial, "that there was evidence enough of want of proper care on the part of the defendant to make it...
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