Consolidated Gas Co. v. Connor

Urner, J., delivered the opinion of the Court. The two appeals embraced in this record were taken from judgments recovered by the appellees in separate suits against the appellant for personal injuries resulting from the inhaling of gas which was alleged to have escaped from the appellant’s pipes through its negligence. As the causes of action were practically identical the cases; by agreement, were tried together in the Court below. The appellees, Elizabeth Goodman, formerly Connor, and her minor son, George L. Connor,- lived at the corner of Hakesley street and Bond Street alley, in Baltimore City.

At this corner there was a city lamp which was supplied with gas by the appellant under a contract with the municipality. While the appellees were asleep at night, in a room on the second floor of their dwelling, they were made ill by gas which escaped from a leak in the service pipe connecting the city lamp with the appellant’s main. Subsequent investigation located the leak in the fitting, called an “L,” ¹⁵¹ which joined the horizontal pipe, laid from the main to the base of the lamp-post, with the-vertical pipe, or “riser,” extending upwards, through the interior of the post, to the burner. The only rulings of the Court below presented for review are those disposing of the prayers offered by the respective parties, and the questions involved are: first, as to the legal sufficiency of the evidence to show negligence on the part of the appellant; secondly, as to the liability of the appellant for the consequences of the escape of gas from a pipe, the ownership of which it claims to have conclusively proven to be in the city of Baltimore; and thirdly, as to the responsibility of the appellant to third persons for alleged negligence under its contract with the city.

In connection with its contract to supply the city lamps Avith gas, the appellant, as the record shows, undertook the duty of keeping the sendee pipes in proper condition. Whenever leaks occurred the established practice was for notice to be given to the Gas Company through the office of the City Superintendent of Lamps and Lighting, and the company would make the necessary repairs. Independently, therefore, of any question of obligation on the part of the appellant to the appellees, the primary inquiry is whether the company was shown, by legally sufficient evidence, to have been negligent in the performance of the duty it assumed to keep in repair the pipes through which its gas was furnished to the city. There is eAudence in the record to the effect that three or four days before the night on which the appellees were injured, gas had been noticed in the street outside of their house; that the odor Avas slight at first, but grew stronger from day to day; that the street lamp was out all that week, and the lamplighter could not light it ; that the Gas Company was notified, and on Wednesday, two days before the injury to the appellees, the company’s employees visited the place and detected no odor of gas; that they made an unsuc ¹⁵² cessful search for a leak by smelling at the burner, but made no investigation at or beneath the surface of the ground; and that on Saturday, the day after- the injury was sustained, the employees of the company dug up the soil at the base of the lamp-post and discovered the leak at the point already described.

It has been held by this Court that it is “for the jury to say as a matter of fact, and, therefore, not for the Court to determine as a matter of law, whether an inspection which failed to discover what other persons in the same situation as was the inspector were aware of was a due and reasonable inspection.” . Consolidated Gas Co. v. Getty, 96 Md. 688 . If the appellant’s agents had made on Wednesday the kind of inspection they made on Saturday, there can be no doubt that the leak would have been discovered and repaired in time to avoid the injury to the appellees. It could not justly be held that an examination which is shown to have been as incomplete and ineffective as the one first made was sufficient to relieve the appellant from the imputation of negligence in the performance of so serious a duty as that of providing against the escape of the dangerous product it was engaged in distributing.

It cotdd not discharge that duty, as this Court has said, “by assuming without knowing that the leak proceeds from one source, when, in fact, it proceeds from a totally different source which could have been discovered by proper inspection.” Consolidated Gas Co. v. Crocker, 82 Md. 124 . The question of negligence was clearly one for-the jury to determine under the circumstances shown by the record. It was urged, however, on behalf of the appellant, that according to the uncontradicted evidence, the service pipe -in which the leak was found belonged to the city, and that therefore, the apjjellant could not be held responsible for the escape of gas at that' point. By the contract under which the city lamps were supplied with gas, for the period covering' the accident in question, it ¹⁵³ was provided, among other things, that the appellant should make connection from its main pipes to such lamps as might be erected by the City along the lines of the mains; that the •company should make such changes in the services supplying the lamps then in use, or which might thereafter be put in use, as might be requested by the City; that .there should be paid by the City to the company the sum of five dollars for each new lamp connected by it to its mains, “this payment to cover the cost of laying the service and making the connection from the gas main to the lamp;” and that the City should pay to the company the “actual cost of making any changes or alterations in its services or connections to any street lamp” then or thereafter erected under the contract.

The situation, therefore, is one in which the City, owning the lamp-posts and lamps, arranged with the Gas Company to supply the lamps with gas. In order that this might be accomplished, it was necessary for the company to instal service pipes extending from the mains to the burners. The “cost of laying the service and making the connection” is stipulated to be paid by the City at a designed flat rate, but no provision'is made for the transfer of title to1 the materials employed in the work. On the contrary, the retention of title in the company is suggested in the stipulation for the payment to the company of the cost of any changes in “its services or connections,” made at the request of the City.

In the bills rendered by the company to the City for making new connections, the charge was merely “for connecting services to new gas lamps,” at the flat rate per lamp prescribed by the agreement. The lamp-post here in question was connected with the main in October, 1908, and the bill for this and other connections for that month was: “for erecting new gas lamps” at the flat rate then in force. In none of the bills in the record for connecting the lamps with the mains is any mention made of the materials used for that purpose. ¹⁵⁴ ■ There is nothing in the contract expressly requiring the company to repair the service pipes, and yet that duty has been treated by both parties as devolving exclusively upon the company. The only payments shown by the evidence to* have been made by the City to the company on account of repairs were in cases where lamp-posts, concededly the property of the City, had been broken off by a runaway team or other cause.

When a lamp was removed to a different location the old. service pipe was not taken up, but a new connection was made for which the City was charged at the contract rate. It was in evidence that the City always disclaimed ownership of the service pipes and that this was a disputed question between the municipality and the company. There were other circumstances relied upon by the appellees as tending to show that the service pipes were not the property of the City, but those we have referred to are sufficient to make it apparent, at least, that ownership by the City was not so conclusively proven by the evidence as to justify the withdrawal of the case from the jury on that ground. It does not appear, • however, that this consideration is vital to the appellees’ case.

In view of the nature of the bush ness in which the appellant is engaged it would, in our judgment, be unduly limiting its responsibility to hold that notwithstanding it should be found to have been neglectful of its duty to repair the service pipe in question, it should be exempted from liability to a third person for the injurious results of its negligence merely because the pipe might be shown to be the property of the municipality. The substance which' the appellant manufactures and delivers to its consumers through its system of mains and connections is highly dangerous to persons and property, and the duty of the company is to use all reasonable precautions to confine this agency within the channels where it may be employed with safety and utility. As the current which the company sets ¹⁵⁵ in. motion is sent through the entire extent of mains and service pipes which it has established for its own profit, and which it has undertaken to repair without reference to the technical question of ownership, it is only just .that the measure of its liability to those affected by any negligence in this regard should equal that of its duty and opportunity to keep the system in repair. In Richmond Gas Co. v. Baker, 146 Ind. 600 , where the suit was for injuries sustained by an explosion of-gas which escaped from a leak in an elbow connecting a conducting pipe with the plumbing of a dwelling house, it was said by the Court: “The company was supplying the house with artificial gas, a penetrating, elusive and