Smith v. Twin State Gas & Electricco

• Citation: 144 A. 57
• Decision Date: 04 December 1928
• Docket Number: No. 2217.,2217.
• Parties: SMITH v. TWIN STATE GAS & ELECTRICCO.
• Court: Supreme Court of New Hampshire

144 A. 57

SMITH

v. TWIN STATE GAS & ELECTRICCO.

No. 2217.

Supreme Court of New Hampshire. Strafford,

Dec. 4, 1928.

Exceptions from Superior Court, Strafford County; Young, Judge.

Case by Abbie B. Smith, administratrix, against the Twin State Gas & Electric Company, for negligently causing the death of plaintiff's intestate. After a verdict for plaintiff, the court recousidered defendant's motion at the close of the evidence for a directed verdict, and granted its motion for judgment, and plaintiff excepts. New trial ordered.

Conrad E. Snow, of Rochester, and Richard E. Shute, of Exeter, for plaintiff.

Hughes & Burns and Geo. T. Hughes, all of Dover, for defendant.

ALLEN, J. A leak in the defendant's gas main under a highway in Dover caused an escape of gas which entered a drain pipe from some catch basins of which the gas arose and passed into the air. There was near by an underground telephone conduit which contained duets in some of which were cables and others of which were empty. The conduit led to the basement wall of a building, and the ducts were carried through the wall; the empty ones being closed on the inside of the wall with wooden plugs. Some of the escaped gas entered this conduit and became pocketed in the ducts as far as the plugs on the inside of the wall of the building. Mixed with the air therein, it formed a dangerous explosive.

The defendant carelessly delayed action to find and stop the leak after notice of it. From previous experience it knew there was some chance that gas escaping in the vicinity of the leak might enter the conduit and work along in the ducts as far as the wall of the building through which the ducts passed.

The decedent was the chief of the Dover fire department. A police officer called his attention to the fact that gas was escaping in the highway, and the decedent requested the officer to ask the janitor of the building to which the telephone conduit led to let the decedent know when he was to be on hand at the building. This was done, the decedent went to the building, and with the janitor entered the basement to investigate. While examining the ends of the telephone ducts on the wall in testing for the presence of escaped gas, the mixture of gas and air in the ducts exploded and one of the plugs flew out and struck him with fatal effect.

Respecting the claim of the decedent's lack of care, in the law of negligence motives for conduct affect its quality, and standards of conduct depend upon the results sought to be obtained. A doctor needed at a patient's bedside, a driver of a fire truck to a fire, may reasonably take more chances in meeting travel on his way than one who speeds for the sensation and pleasure of it. While in general the conception of care is the taking of ordinary precautions to avoid injury, and one who knowingly elects to enter into, instead of to avoid, a danger cannot be held careful towards himself, cases are found where such conduct is treated as proper in a legal sense. When one goes from safety into danger to save others, and possibly the property of others, in imminent danger, the Issue of his care is generally regarded as one of fact. See Kambour v. Railroad, 77 N. H. 33, 49, 50, 86 A. 624, 45 L. R. A. (N. S.) 1188. In such cases, while no care of self protection may be used, yet since it is reasonable to dispense with such care, the conduct is usually held to be not necessarily and as a matter of law negligent.

It is said in the Kambour Case (page 47 of 77 N. H. ):

"Volens means wishing, not willing; and it by no means follows from the fact that a person is willing to chance being injured, that he wishes, or even is willing, to be injured."

Whether "volens" means wishing rather than willing may be questioned, but further, if one may be willing to chance being injured, he at least is willing to be injured rather than not take the chance of it, for otherwise his action would not be taken. And in taking this chance he does not use ordinary care for his own protection, unless it be assumed that the ordinary man would have, and be influenced by, the same motives to take it. If the ordinary man has such attributes of heroism, especially towards strangers, it would seem to follow that heroism is an ordinary and not unusual virtue. Common understanding is to the contrary.

In many cases in other jurisdictions a line is drawn between ordinary care and reckless folly in such situations. But the conduct is reckless in the sense that reckoning for one's own safety is not taken, and since it is not to be said that the ordinary man has sufficient courage, altruism, and spirit of self-sacrifice to incur such risks, even with such motives, when under no more than a moral duty at best to do so and when the risk is incurred for the benefit of persons not closely related by kinship or friendship to him, it would seem more logical and consonant with justice to say that in such cases the law excuses the lack of care in self protection and makes an exception to the general rule that contributory negligence is a defense. Further, in jurisdictions where it is held that the intervention is not necessarily negligent, no recovery, it is understood, is allowed for the value of the service of intervention, which, although not requested, is causally as much the result of the defendant's negligence as the injuries sustained. The value of such service, it would seem, is as much an element of damage as the value of one's time given to the repair of his damaged property.

Accordingly, in what is believed to be the real situation in such cases, the legal quality of fault or blame in the careless act is placed on the same footing as its moral quality which overlooks fault or blame by reason of the motives for the act. It may be an exception to, but it is not a violation of, legal doctrine to say that there is such a thing as reasonable or excusable carelessness on a plaintiff's part. Exceptional situations may properly call for exceptions to general legal doctrines, and contributory negligence is not invariably and without exception a defense in actions for negligence. An intervener's right of recovery, in spite of his lack of care, when given, is comparable with the right of recovery under the last chance doctrine, which is similarly an exception from the usual effect of a plaintiff's negligence and, it would seem, for less meritorious reasons.

But when the act is performed, as here, in the course of official service, if not as a legal duty, it is not to be said that performance of the service or duty is negligence which will bar recovery. If only men of adventurous spirit and with less than normal regard for their safety enlist to become members of the crew of a submarine, they are not to be found in fault for so doing. The law in advance makes their action valid and proper, and it will not hold them in blame for the consequences of taking the action. The undertaking is a circumstance in the light of which their subsequent conduct is to be judged, but the undertaking itself, being lawful, is not to be made wrongful or a bar to recovery under any claim of its negligent character.

As to the claim of the decedent's negligence in the manner of performing his service, the janitor of the building where the fatality occurred testified that in making the test at the duct the decedent lighted a match, with some doubtful protest by the janitor, and the explosion instantly followed. If the only reasonable conclusion is that the decedent did light a match whose flame was the immediate cause of the explosion, the further conclusion of his negligence in so doing is not compelled. While it may be common knowledge that a substantial amount of gas in mixture with air is an inflammable explosive so as to make it careless to apply a flame to it, there was here no necessary indication of such a quantity of gas, and in fact the odor of gas in the basement was slight. It is more or less well known that in testing pipes for leaks flame is applied on the pipes. And it might fairly be said that the decedent acted in a practical and proper way, considering the evidently slight amount of gas to be noticed and the conclusion that its entrance was through a very small aperture. The telephone ducts near which the decedent stood were" all closed, and it did not appear that he had evidence to indicate that there was in fact gas in or about the ducts. He was investigating for the possible presence, and not dealing with the known or probable presence, of the gas. Considering the fact that he was acting in the course of his public service, what he did was inconclusive in showing negligence and might be found consonant with ordinary care.

The defendant's careless delay in locating and stopping the leak may be found to have had causal connection with the fatality. It may be conjectural to say that the gas would not have entered the telephone ducts and remained there until the time the explosion happened had there been no such delay. But with seasonable action the leak would have been repaired so as to obviate the occasion for the decedent's investigation. He was searching into a continuing and existing escape of gas and not seeking to find out about a past occurrence. Seasonable repair of the leak would have avoided his entry into a dangerous situation, while the defendant's careless delay in a natural and proximate way led to his entry and the ensuing circumstances culminating in the explosion. If the carelessness did not produce the danger of an explosion of escaped gas, it produced additional danger of explosion in the demand it made for investigation in the public's behalf, and shared as a substantial cause of the explosion which occurred in the investigation. Anticipation of the investigation and the way in which it was carried out might be found to be within the reasonable foresight of what was likely to happen from the defendant's dilatory conduct. The decedent's conduct was...