Stewart v. Worcester Gas Light Co.

• Citation: 170 N.E.2d 330,341 Mass. 425
• Parties: Harold E. STEWART et al. v. WORCESTER GAS LIGHT COMPANY. Mrs. McCABE v. WORCESTER GAS LIGHT COMPANY and Boylston Contractors, Inc. Anthony CARENZO v. WORCESTER GAS LIGHT COMPANY and Stewart.
• Decision Date: 16 November 1960
• Court: United States State Supreme Judicial Court of Massachusetts

Page 330

170 N.E.2d 330

341 Mass. 425

Harold E. STEWART et al. v. WORCESTER GAS LIGHT COMPANY.

Mrs. McCABE v. WORCESTER GAS LIGHT COMPANY and Boylston Contractors, Inc.

Anthony CARENZO v. WORCESTER GAS LIGHT COMPANY and Stewart.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 27, 1960.

Decided Nov. 16, 1960.

Matthew R. McCann, Worcester, for Worcester Gas Light Co.

Baron H. Crowell, Westboro (Arnold W. Olsson, Worcester, with him), for plaintiffs Stewart.

Fred L. Williams, Marlborough, and Sidney S. von Loesecke, Newton Centre, for plaintiff McCabe.

Philip J. MacCarthy, Worcester, for plaintiff Carenzo and defendant Boylston Contractors, Inc.

Before WILKINS C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

These actions arise from a gas explosion on March 5, 1957, which destroyed Mr. and Mrs. Stewart's house in West Boylston and injured Mrs. McCabe and Anthony Carenzo, an employee of Boylston Contractors, Inc. (Boylston). Boylston had made a contract with Stewart to dig a leaching pit on Stewart's front lawn. During the work a power hoe tore apart a gas company service line about two feet below the surface of the lawn. Gas escaped into the house and later exploded there, while Carenzo was digging a trench in the lawn and Mrs. McCabe was sitting in an automobile in a driveway abutting the Stewart premises.

The actions ¹ were tried together. There were verdicts for Mrs. McCabe against Boylston and against the gas company, and for the Stewarts and for Carenzo against the gas company. The cases are here on Boylston's exception to the trial judge's refusal to direct a verdict for it and upon the gas company's exceptions to the refusal to direct a verdict for it on each count against it and to rulings on evidence. We consider the evidence in its aspect most favorable to the plaintiffs.

The gas company's offices were in Worcester. It served customers in that city and in surrounding towns. From a street gas main a one inch service line ran under the Stewarts' lawn and along, and about two and a half feet from, the house foundation to midway along the side of the house. There, after a right angle turn, it entered the foundation wall. In this one inch line, about eleven feet from the street main, there was a curb cock shutoff in a box, not visible from above, about an inch below the surface of the public way. Between this box and the house were forty-two feet of one inch pipe, then a so called dresser coupling (about two or three feet from the house), then about ten feet of pipe which ran to the right angle bend. Inside the house, on the service line, there were a wing cock shutoff and a meter cock shutoff.

In 1950, Stewart decided to discontinue service and told the gas company to shut off the gas, or take out the meter. The company closed the wing cock and meter cock inside the cellar and removed the meter. It did not remove the service line. The curb cock was left open so that gas ran as far as the inside wing cock. Stewart did not request removal of the pipe or of the gas from the pipe. ²

Before Boylston started to dig the leaching pit, Stewart pointed out to Kimball, Bolyston's administrative officer, the location of the water line and told him that 'the gas pipe was under his lawn.' Stewart did not know the location of the gas line or whether it had gas in it. Kimball did not tell the foreman or members of Boylston's crew about either line. The foreman did not know that the gas line was there and did not inquire. The gas company was not notified of the proposed work nor was it requested to furnish plans of the gas lines.

On March 5, 1957, shortly after 8 a. m., Boylston's crew arrived to do the work. The Stewarts were not there. Kimball staked out the leaching pit and left the crew in charge of a foreman, Turini. About 9 a. m. the power hoe 'snagged the gas service line * * *, the operator thought it was a root and * * * bent it about nineteen * * * inches out of line, but did not break it at the point of contact.' The line came 'apart at the * * * dresser coupling ³ allowing gas to escape underground.'

Two electric services ran to the house. One supplied current to the hot water heater. On the inside cellar wall there were two plainly visible main switches and there was evidence 'that a spark was apt to occur upon the throwing of a switch.' It could have been found that gas escaping underground through the frozen ground reached the cellar and that sparking of a thermostat switch in the water heater caused the explosion.

Shortly after the service line was broken, 'Turini had a woman across the street call the gas company,' but did not talk by telephone himself. This call, received about 9:10 a. m., came to the attention of Lutz, superintendent of the distribution department. The telephone message appears to have been that 'a gas pipe had been hit in the street,' or 'that there was a leak in the gas in front of the Stewart house.'

Lutz at once dispatched to the Stewart house one Fleming, a draftsman, with plans of the underground gas systems in West Bolyston. Fleming left the Worcester office about 9:20 a. m. ⁴ in a company passenger automobile and arrived at the Stewart house, about eight miles away, about 9:40 a. m. Lutz also made prompt efforts to get in touch with one or more of his ten or twelve crews operating from five repair trucks, first by radio and then by telephone. At about 9:15 a. m. he reached Kalinowski, the foreman in charge of a repair crew then in Millbury. Kalinowski and his crew went at once about ten or twelve miles to the Stewart house, and arrived there about 9:44 a. m. The West Boylston fire department received a fire alarm call at 9:50 a. m.

Fleming, whose experience is discussed more fully below, did not take with him a wrench to shut off the curb cock, although such a wrench was available near Lutz's office. Fleming's testimony was that his function was 'merely to bring the plans.' There were other men in the gas company's drafting department, when the telephone call came in, who 'had experience in the handling of gas leaks.' The gas company does not maintain an emergency crew at its distribution department headquarters.

Before initiating the telephone call to the gas company, Turini and another entered the Stewart cellar. They 'could smell gas and hear it hissing. * * * They * * * opened all the windows' so far as not obstructed and obtained cross ventilation. 'They also shut off two * * * switches on the furnace, but did not shut off the two main switches.'

Later, Stewart arrived at his house. Turini, Stewart, and another man went into the cellar for a minute or two. Stewart 'walked near' the main switches, 'but did not touch them.' Fleming soon arrived, 'dressed in street clothing, not working clothes.' After looking at the bent pipe, he went into the cellar with the others. 'They told him they had shut off the switches to the furnace.' There was a smell of the heavy gas concentration. He noticed that the service pipe at the wall had not been 'pulled or moved,' and saw that the 'wing cock and the meter cock' were closed and not leaking. When they came out of the cellar, Stewart and Turini left the premises. Fleming started to find the curb shut-off box and was checking his plans when Kalinowski and his crew arrived with tools. Fleming described the situation to Kalinowski. Within a 'couple of minutes' of Kalinowski's arrival, they found the curb shutoff box by using the plan and closed the shutoff. At that moment the house blew up.

1. The judge properly denied Boylston's motion for a directed verdict in the action brought by Mrs. McCabe. Boylston could have been found negligent upon the evidence (a) that its hoe tore the service line apart; (b) that Kimball, although warned of the gas pipe, did not mention it to Turini; (c) that Turini did not ask whether there were gas pipes in the lawn; and (d) that the escape of gas caused by the break contributed directly to the explosion.

Boylston argues that intervening negligence on the part of the gas company relieved Boylston of liability. Boylston's negligence, however, could be found to be a concurrent, contributing cause of the explosion, even if it also could be found that, after the service pipe was broken, the gas company by some negligent act or omission helped to cause the explosion. See Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 516-517, 167 N.E. 235; Flaherty v. New York, N. H. & H. R. Co., 337 Mass. 456, 462, 149 N.E.2d 670. See also Carroll v. Cambridge Elec. Light Co., 312 Mass. 89, 94-97, 43 N.E.2d 340; Prosser, Torts (2d ed.) § 49. Cf. Demers v. Illinois Cent. R. Co., 339 Mass. 247, 158 N.E.2d 672, ⁵ and certain distinguishable railroad cases there cited. Cf. also Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 48-49, 15 N.E. 84. Any conduct of the gas company on March 5, 1957, after the break in the service line, could be found to have been of a type foreseeable as likely to occur after such a break.

2. In the Stewarts' case against the gas company, a count in negligence and a count alleging maintenance of a nuisance were submitted to the jury. There was no basis for finding that the gas company was maintaining a nuisance by leaving its service pipe filled with gas. The pipe, until broken by Boylston, had not caused trouble. If service had been continued, it would not have constituted a private nuisance. The Stewarts had not been shown to have asked that the service pipe be removed or that gas be shut off at the curb. To permit recovery based on nuisance without showing the gas company to be at fault would hold the gas company absolutely liable for any accident as, in effect, an insurer. The maintenance of gas in the company system in the public streets does not give rise to liability without fault. See Musolino LoConte Co. v. Boston Consol. Gas Co., 330 Mass. 161, 162-165, 112 N.E.2d 250. We think that, although the gas company's pipes...