Soulier v. Fall River Gas Works Co.

• Decision Date: 16 May 1916
• Citation: 112 N.E. 627,224 Mass. 53
• Parties: SOULIER v. FALL RIVER GAS WORKS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 53

112 N.E. 627

SOULIER

v.FALL RIVER GAS WORKS CO.

Supreme Judicial Court of Massachusetts, Bristol.

May 16, 1916.

Exceptions from Superior Court, Bristol County; Lloyd E. White, Judge.

Action by Bertha T. Soulier against the Fall River Gas Works Company. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.John A. Kerns, of Fall River, for plaintiff.

Jennings & Brayton, of Fall River, for defendant.

LORING, J.

On moving into a house which had been unoccupied for six months, the plaintiff sent to the defendant gas company ‘to put in a gas meter.’ This was in the week before the 17th of June, which in the year in question fell on a Tuesday. On some day in the middle of that week, two employees of the gas company came to the house to put up the meter. After putting up the meter which was in the cellar, they came into the plaintiff's kitchen and tried unsuccessfully to light the gas there. They found that no gas was coming through the pipe and without returning to the cellar they left, saying that they would have to send the ‘drip man.’ On Saturday of the same week another person came from the gas company, went down cellar and from there went up into the kitchen. He tried to light the gas and found it wouldn't light and said he would have to send the drip man and left. On the following Tuesday, the 17th of June, one Laroche (‘the drip man’) came to the house. He pumped the ‘drip out’ in the yard, then he went into the cellar through a door leading directly into it from the yard and then came into the kitchen. On coming into the kitchen he struck a match and lit the gas, whereupon the plaintiff said to him that she smelt ‘gas awful strong,’ to which he answered, ‘You smell the gas from my hands; it comes from my hands and clothes, I am full of it,’ to which the plaintiff replied, ‘You sure it's all right, everything is all right, you sure?’ and he said, ‘Everything is all right.’ At the time that Laroche came to the plaintiff's house she was getting dinner for her children who had come home early because it was ‘circus day.’ She gave the children their dinner on a plate and they took it out in the yard because of the smell of gas in the house. After taking a pitcher of water to the children in the yard the plaintiff came back into the house to take ‘the pot off the stove’ and put it in the pantry. She took the pot into the pantry, took some potatoes out of the pot and put them in a dish. She testified that after that: ‘I don't remember any more. When I next remembered I was out in the yard sitting.’ The true explanation of the escape of the gas was found out after the accident. After the accident it was found that the tenant, who had moved out six months before the plaintiff took the house, had a gas stove. On moving out the tenant unscrewed this stove from the gas pipe, laid a piece of wood over the end of the open gas pipe and left the house with the pipe unplugged. No gas came out of the unplugged pipe until the drip was pumped out because the water in the ‘drip’ prevented the gas coming into the house; but when the drip was pumped out by Laroche the gas came through the drip into the house and escaped through this unplugged pipe.

There was some conflict in the evidence, but the jury were warranted in finding that these were the facts of the case.

At the conclusion of the evidence the defendant asked the presiding judge to give the five rulings set forth below in the note.¹ The judge refused to give these rulings and the defendant took an exception to that refusal. The jury found for the plaintiff and the case is here on these exceptions.

1. It must be taken on this record that the case was tried on the footing that it was admittedly the duty of the defendant to turn on the gas and to see everything was tight in regard to escaping gas. In his charge to the jury the presiding judge said:

‘I understand from what they (defendant's servants) say in regard to their duty there, that it was their duty to see everything was tight in regard to escaping gas.’

To this no exception was taken. In fact no exception was taken to the charge. The only exception taken was that taken to the refusal to give the rulings asked for by the defendant. Under these circumstances the question which arose in Flint v. Gloucester Gas Light Co., 3 Allen, 343, did not arise here.

2. The defendant's first contention is that on the evidence the jury were bound to find (as the defendant asked the judge to rule in the third request for rulings) ‘that there was no evidence that any servant of the gas company turned on the meter.’

This contention is based upon the fact that two witnesses called by the plaintiff testified that they went into the cellar immediately after the plaintiff was overcome by gas and found a spike through a hole in the arm of the meter by which the gas was turned on to the house through the meter. And the defendant's employees who put up the meter in the middle of the week, testified that they did not turn on the gas, that when they left the gas was not turned on, and that there was then no spike through the arm of the meter. One difficulty with this contention is that the jury were not bound to believe the testimony of the...