
    Sarah Levy, Respondent, v. The Consolidated Gas Co., Appellant.
    (City Court of New York, General Term,
    October, 1897.)
    Negligence — Employee of gas company leaving a tap open.
    Proof that, after an employee of a gas company, sent to do so, had turned on the gas in the cellar of a building, it escaped from a' tap in the ceiling of the next floor, not furnished with any cap and .where there was no gas fixture, is sufficient evidence of negligence to enable a wife, occupying the premises with her husband, to recover damages of the gas company for injuries caused by her asphyxiation, the pvil effects of which continued up to the time of the trial of the action.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict, and from an order denying a motion for a new trial.
    Lord, Day & Lord, for appellant.
    Henry Schmitt, for respondent.
   Conlan, J.

This is an appeal from a judgment, entered upon a verdict, in favor of the plaintiff, and from an order denying a motion for a new trial.

■The action is brought to recover damages alleged to have been sustained by the plaintiff in consequence o£ an escape of gas in the premises No. 2503 Eighth avenue, New York city, on the 26th day of November, 1894. . . •

The appellant has doubtless stated the case as strongly as the evidence will warrant- in asking for a reversal of the judgment, and. we quote the following from its brief:

' “ It appears by the testimony that on the 25th day of November, 1894, the plaintiff moved with her husband and one daughter into the premises in question, which consisted of a store and living- • apartments in the rear,. On the 26th day of November, according to the plaintiff’s testimony, the defendant sent a young man to turn the gas bn to the meter through which the premises were supplied with gas. This was about three o’clock in the afternoon; later in the day plaintiff "was overcome by gas, audit is evident from the testimony of the policeman Meyer, that this must have -taken place at about a quarter of five. The plaintiff testified that at the time the gas was turned on, she was'in the kitchen; that she-turned the gas on and put it out there, and then went into the store; that her son came in shortly after; that she complained of feeling badly, heard her husband come in, and then fainted.” '

The witness Schweppenhauser, for the plaintiff, testified that a. young lad came over to his shop and asked him to go over and repair a gas leak in the house in question; that he went and found a cap off the gaspipe and put one on so that the gas could not get out. He found a tap in the pipe and the gas was coming out. The pipe was in the ceiling; there were ho fixtures there and he plugged up this -tap so that the gas could not get out.

The witness examined to see if there was any other leak on the premises, and says he did not discover any. Upon the defendant being notified of the occurrence it sent to the plaintiff’s husband a letter which was put in evidence, stating that “ upon investigation we find that we are in no way responsible for the escape of gas in your premises; ” and subsequently,, when the plaintiff’s husband .called at the defendant’s office for an interview, the president of the defendant said to him: “We have sent a good mechanic there,” and characterized the plaintiff’s claim as bosh and added, “go-and sue.” ■ . ,

The plaintiff’s version of the occurrence is as follows: “The-young man came in and asked me where the meter was, and I told . him it was in the cellar. So he went down into the cellar and afterwards came up and said the meter was open and he started to light the lights, and I tried to light up, and afterwards I turned them out, and then iny son came in, I turned down the lights. This man said the meter was open, and he then went away; and I turned out the lights myself. He told me to light the lights and I did so.”

The testimony of the physician is to the effect that the plaintiff’s sufferings were caused by the inhalation of illuminating gas and that at the time of the trial she had not fully recovered from the effect of such inhalation.

There is not in evidence any testimony whatever on behalf of the defendant to contradict any of the plaintiff’s witnesses, and the jury found in favor of the plaintiff. We have examined the whole case with a view to discover if any errors were committed upon the trial. The charge of the trial judge was eminently fair to the defendant, and our attention is not called to a single authority which calls for a different determination of the issues presented by the pleadings and the proof.

A ruling in favor of the defendant and upon every question raised during the progress of the trial .would not have materially changed the aspect of the whole case as it was finally presented to the jury, and we -have not been able to find any errors in the direction or the charge.

The exceptions taken by the defendant are of matters which could have but little, if any, effect upon the result, and we are not inclined to interfere with the verdict as rendered.

The whole case was fairly before the jury, and their finding is neither against the evidence, the Weight of evidence or .excessive in amount, and, therefore, the judgment should be affirmed, with costs.

Fitzsimons and Schuchman, JJ., concur.

Judgment affirmed, with costs.  