
    Mary Hammerschmidt, Respondent, v. Municipal Gas Company, Appellant.
    Third Department,
    June 27, 1906.
    Negligence — injury by gas escaping from main — when defendant not liable.
    A gas company is not liable for injuries received by reason of a leakage in its gas main from which gas confined by the frozen ground above permeated,, through the soil into the plaintiff’s premises, when no complaint of the condition' was made by the plaintiff, and there were no surface indications of the leak discoverable by inspection, and no defective construction of the gas main is shown.
    The fact that leakage of gas occurs does not make a prima facie case of negligence, and a defendant, not notified of such leakage, is not obliged to go upon private premises in order to discover one.
    Appeal by the defendant, the Municipal Gas Company, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 8th day of June, 1905, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the ■ 8th day of June, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Andrew Hamilton and Neile F. Towner, for the appellant.
    
      Louis Silberman and Mark Cohn, for the respondent.
   Smith, J.:

By this judgment defendant has been charged with damages for negligence in permitting the leakage of gas in a street in the city of Albany, which leakage permeated through the soil of the street and into the basement of a house wherein the plaintiff had rooms. The odor of the gas caused the plaintiff to become sick and unable to work to her pecuniary damage. Plaintiff occupied the basement of the premises 158 Grand street from November, 1903, until March, 1901. During all this time she claims that there was an odor of gas in her apartments which affected the health both of herself and of the other members of her family. No complaint was made by liev or any one else to the defendant gas company. She claims, however, to have complained several times to her landlady, who upon the stand denied that she received complaint until about the middle of February, at which time she at once gave notice to the defendant company and the leak was at once repaired. The case was submitted to the jury upon the negligence of the defendant in failing to repair the leak, in case the jury found that by reason of the length of time during which that leak had existed defendant had constructive notice of the defect. The jury found a verdict for the plaintiff for the sum of $500. From the judgment entered upon this verdict the appeal has been taken.

We are unable to find any proof whatever of the defendant’s negligence in this case. The fact that the leakage occurs does not make even a prima facie case of negligence. (Hutchinson v. Boston Gas Light Co., 122 Mass. 219.) And this was the law of the case as charged by the learned county judge. The leak was found in the middle of the street. There is no proof that the pipe in which the leak occurred was defective, and there was no question submitted to the jury as to defective construction. Even though this leak had existed from ¡November or a date prior thereto until February, 1904, when it was repaired, there is no evidence to charge the defendant with any notice thereof. The winter was a severe one. The ground was frozen. The odor of the gas could not, therefore, come up through the ground. The defendant company was not authorized or required to be crawling around peoples’ houses to find possible leaks where no complaints had been made. The only evidence that this was discoverable at all outside of this house at 158 Grand street is the evidence of the witness Frank Owens, who swears: “ The gas came out of the basement. When you sat on the stoop nights you could smell it; we used to sit out there, come up through the stairway.” It is apparent, therefore, that he only discovered the leak by reason of the open stairway and the gas coming from the inside of the house. Defendant’s employees were constantly passing and repassing and swear that they discovered no smell of gas upon the street. The evidence of a single witness that he discovered the smell of gas upon a veranda off from the street, even though the gas did not come from the interior of the house, would not be sufficient to give constructive notice to the defendant, because it is not a place where an inspector would naturally go to find if gas were leaking. There is no question that a sufficient force was kept on hand to repair all leaks of which the defendant had notice, or claim that this leak was not promptly repaired as soon as the defendant had notice thereof. It is true that in LTovember a gas meter was put into this house and in December the gas meter was read by an employee. There is no proof, however, that any gas was then discovered", and no judgment can rightfully rest upon the possibility that such employee might have discovered gas at that time. We can find nothing in this case which shows that the defendant was guilty of any fault or of any negligence in failing to repair a leak of which it confessedly had no actual notice and which could not be ascertained by its employees except in unnatural ways.

The judgment and order should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  