
    Nathan Tiehr, by Joseph Tiehr, his Guardian ad Litem, Respondent, v. The Consolidated Gas Company, Appellant.
    
      Gas explosion in a street manhole —proof as to the gas company’s negligence.
    
    Evidence that an explosion of illuminating gas occurred in a manhole connected with a sewer in a public street; that for some two weeks prior to the explosion the smell of escaping- gas was noticed in the vicinity, and that immediately after the explosion it was found that a gas main at a point 100 feet from the manhole was broken, and that the smell of escaping gas- ceased as soon as the break was repaired, coupled with proof that gas escaping- from street mains has a.tendency to force its way into sewers and accumulate in manholes, and that the gas probably did not escape from any other main than that in question, accompanied - with testimony that the premises opposite the manhole in question were examined ten or fifteen days before the explosion and that no gas was found to be escaping therein, is sufficient to warrant a |ury , in finding that the explosion, resulted from the negligence of the gas company.
    Appeal by the defendant, The Consolidated Gas Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the-12tli day of December, 1899, upon the verdict of a jury for §2,000, and also ■from - an order entered in said clerk’s office on the- 13th day of December, 189.9, denying the defendant’s motion for a new trial made upon the minutes. .
    
      Henry De Forest Baldwin, for the appellant.
    
      Leo G. Rosenblatt, for the respondent.
   Patterson, J. ;

The infant plaintiff was injured by an explosion of illuminating gas, which it is alleged the defendant negligently -allowed to escape from its main and to accumulate in a manhole connected with a sewer in Ridge street in the city of New York. The manhole was located at about the.middle of the carriageway and nearly opposite the premises, No. 78 Ridge street. It was distant about 100 feet from the corner of Delancey street. On the afternoon of October 19, 1893, the plaintiff and .his father were on Ridge street, the child ran from the sidewalk and upon the carriageway, and while he was near, the manhole the explosion occurred, the flames setting tire to his clothing. He was severely burned. The proof conclusively shows that the explosion was of illuminating gas. It was claimed that it occurred as a result of the defendant’s negligence in not properly inspecting or providing for the inspection of its mains or street pipes. At the trial the plaintiff had a verdict, and from the judgment entered upon it and from an order denying a motion for a new trial, the defendant appeals.

The duty of a gas company manufacturing and distributing illuminating gas is well expressed in a few words in the opinion of the court in Schmeer v. Gas Light Co. (147 N. Y. 536) in these words: “ While this gas remained on the premises of the manufacturer, or while it was being conducted through its own pipes to different parts of the city, there can be no doubt that the company was bound to exercise vigilance to prevent injury to third parties from the dangerous qualities of- the gas.” It was incumbent upon the plaintiff, under the pleadings in this case, to establish that the explosion was of gas which escaped from the pipes or mains of the defendant, and that the defendant had not exercised that vigilance which the law required; or, in other words, that the defendant was negligent,in the discharge of the duty it owed to persons traveling upon the street. Although the direct cause of the explosion was not shown, there was sufficient evidence to take the case to the jury. For some two weeks prior to the explosion the smell of escaping gas was observed in and along Ridge street. The defendant relied for reports of defects in its mains and of escaping gas in the streets upon its employees who put in meters, lit street lamps, and made repairs of various kinds,'and each employee was instructed to report any leak that might be detected by smell or otherwise. Immediately after the explosion it was. found that a three-inch main of the defendant at the corner of Delancey and Ridge streets was broken. It was then temporarily remedied and -permanently repaired the next day. After the temporary repairs, the smell of escaping gas ceased. The explosion took place as before stated in a manhole, 100 feet distant from the point at which the main pipe was fractured. It was shown that gas escaping from a leak might find its way through the earth and into street sewers and be carried along and accumulate and be readily ignited by a spark, and the plaintiff’s "theory was that the gas which escaped from the break at the intersection of the two streets passed into the sewer running north and ¡south in Ridge street, accumulated in the manhole and in some unexplained way became ignited, and the explosion ensued.

The evidence seems to exclude any probability of. the gas escaping from any other main than that of the defendant. The leak in that main accounted for escaping gas and the proof respecting the ten-dency of gas escaping to force its way through, the soil and accumulate in covered sewer manholes, made out a prima faoie case, unless :it can be said that there were mains of .other gas companies in ■ the street from which the exploding gas could have escaped. . A ■witness, who occupied the premises No. 78 Ridge street,, states that some ten or fifteen days before the explosion he, observing the smell of gas, notified 'his. company, who sent a man down, -evidently to examine the witness’ premises, and no escape of gas was found therein.. It is positively shown that the smell of es'cap"ing gas ceased as soon as the defendant’s main was repaired, and upon all the testimony in the case the jury were authorized to find that it was the gas escaping from the defendant’s main that ..accumulated in the manhole and exploded. The- jury were . also .authorized to find that there was negligence of the defendant’s ■ employees in not detecting or reporting the escape of gas. It was their duty -to do so, and the defendant’s superintendent of mains -testified that if there were a smell of gas on Ridge street for two weeks and the defendant’s employees did not report it such employees were negligent. Upon the issues of fact, we see no reason for ".interfering with the verdict of the jury.

It is claimed, however, by the appellant that serious errors were -committed by the trial judge in his instructions given, to the.jury. They were told that if from the evidence they found that just prior "to the explosion illuminating, gas in quantities- sufficient to cause the explosion was present in the manhole where it occurred, and that the circumstances and conditions which preceded and followed the presence of such gas in said.manhole, and especially the coinbi-dence that the smell of gas-ceased to pervade the atmosphere in the. ■vicinity of the manhole as soon as the defendant had repaired the "break in its pipe, were such as to. exclude all theories other -than jplaintifi’s theory, which traced the origin of the exploding gas to the "break in defendant’s pipe, then they might regard plaintiff’s theory .as legally established and ■ find a verdict in accordance therewith. There was no error in that instruction. It presented to the jury ■clearly and plainly the elements upon which they would be justified in finding a verdict.

An exception was also taken to an instruction given to the jury in the following words: “If the jury find from the evidence that defendant brought into the- street an inflammable and explosive ■fluid, capable of escaping in such a way as to produce the casualty ■complained of, and that such casualty actually occurred, then the facts thus found may be treated as sufficient to justify the inference that the casualty was due to the agency or negligence of the defend■ant, in the absence of proof that it was otherwise caused.”

It is strenuously argued that the effect of this instruction was that if the jury should find the simple .facts that the defendant "brought gas into the street which might escape in such a way as to produce a casualty and that a casualty did. occur, that these two facts would be sufficient in and of themselves to justify a conclusion •of negligence of the defendant, unless the defendant proved some •other cause of the accident. We do not construe this instruction as the defendant does. It must be taken'into consideration with other and subsequent parts of the charge made to the jury. In a subsequent part of the charge the judge said: “As you will doubtless thoroughly understand from the evidence which has been given, ■and the arguments of counsel, and from the instructions which I have already given you, the question in the case is whether this accident was due to the negligence of the employees of the defendant gas company, and whether through that negligence the gas found its way into the manhole and was in some manner ignited and caused the explosion and caused the flame to come out and set the boy’s clothing on fire.”

The whole tenor of the charge indicates that the jury could not have construed the instruction as meaning-that' the mere introduction of gas into the street and the effect of- an explosion was evidence of negligence. It was in connection with and by.reference to ' the instruction previously given that the court expressly stated to the jury that the question was as to the negligence-of the employees of the defendant gas company in failing to detect or report the •existence of a leak in their main.

The judgment and order .should be affirmed, with costs.

Van Brunt, P. J., Rumsey and Hatch, JJ., concurred.

Van. Brunt, P. J.:

I concur upon the ground that there being no proof that any other gas mains than the defendant’s were in the street, there was no-error in the charge.

Judgment and order affirmed, with costs.  