
    HINES v. THE GEORGETOWN GAS CO.
    Master and Servant; Pleading.
    1. In an action by a servant to recover damages of his master for negligence, there must be shown a clear breach of duty on the part of the master, the consequences of which could not have been avoided by the servant by the use of reasonable care and precaution on his part under the circumstances.
    2. The allegation that the master, the defendant, was guilty of the act of negligence or wrong charged is well supported by proof that the negligence or wrong was committed by the servants or agents of the defendant in the course of their employment.
    3. It is enough if there be certainty in pleading to a common intent.
    4. In a suit by a former employee of a gas company for injuries resulting from his being overcome by gas while engaged in digging a trench in which to substitute a new for an old pipe, it is unnecessary to allege in the declaration that the plaintiff was ignorant of the danger of his situation and of his employment, or that the plaintiff was Ignorant of the noxious and dangerous character of the gas.
    5. Nor is it necessary in such a case for the plaintiff to allege in his declaration that he did not by his own negligence contribute to the production of the injury complained of.
    6. That the injury complained of in such a case was occasioned by the negligence of a fellow-servant engaged in the same common employment is matter of defense not necessary to be negatived in the declaration.
    No. 303.
    Submitted March 21, 1894.
    Decided June 4, 1894.
    HeariNG on an appeal-from a judgment of the Supreme Court of the District of Columbia, sustaining a demurrer to an amended declaration in an action for damages for alleged negligence.
    
      Reversed.
    
    Statement of the Case.
    The amended declaration was as follows:
    “ The plaintiff, by leave of the court first had and obtained, hereby amends his amended declaration in this case and says that he sues the defendant, a body corporate under the laws of the United States—
    " For that whereas heretofore, to wit, at the time of the committing of the grievances hereinafter mentioned and for a long time, to wit, five years, prior hereto, the defendant was carrying on, in the city of Georgetown, in the District of Columbia, the business of supplying illuminating gas to dwelling-houses, stores, offices, and other buildings, and to that end laid and maintained in, on, and under divers highways in the District aforesaid certain pipes for the conveyance and transmission of such illuminating gas from the place of manufacture to the dwelling-houses, stores, offices, and other buildings aforesaid, such illuminating gas, as the defendant then and there well knew, being noxious, deleterious, injurious, and deadly to human beings when inhaled by them; and whereas heretofore, to wit, on the fifth day of December, A. D. 1891, while the defendant was carrying on the business aforesaid in the manner aforesaid, the plaintiff was then and there in the employment of the defendant as a laborer, and the defendant then and there required and directed the jfiaintiff, in the performance of his duties as laborer1 as aforesaid, to enter a certain ditch or trench in one of the highways aforesaid, to wit, N street, in the said city of Georgetown, in which ditch or trench there was a certain pipe, which, as the defendant then and there well knew, was one of the pipes laid and maintained by the defendant for the purpose aforesaid, which pipe the defendant was then and there engaged in removing in sections and in substituting therefor in sections a new pipe to be used in the same way and for the same purpose, and the plaintiff then and there, in compliance with said instructions and direction from the defendant and in the performance of his duties as a laborer as aforesaid and for the purpose of assisting the defendant in said work of removal and substitution, then and there entered said ditch or trench, and it then and there became and was the duty of the defendant to have such illuminating gas cut off from said old pipe and prevented from entering the same and to prevent such gas from escaping therefrom at the point where the plaintiff was at work as aforesaid, yet the defendant wholly neglected its duty in that regard and then and there and while the plaintiff was engaged as aforesaid in said ditch or trench in, the performance of his duties as a laborer as aforesaid and in pursuance of the instruction and direction of the defendant as aforesaid did not cause said illuminating gas to be shut off from said pipe or prevent it from entering said pipe and did not prevent the same from escaping therefrom into said ditch or trench, but carelessly and negligently allowed said gas to escape therefrom into said ditch or trench while the plaintiff was at work therein as aforesaid, in consequence whereof and while the plaintiff was ignorant of the defendant’s said carelessness and negligence, and was otherwise in the exercise of due care and diligence on his part, said gas escaped from the pipe aforesaid into said ditch or trench while the plaintiff was at work therein as aforesaid, and the plaintiff involuntarily and without negligence on his part then and there inhaled the said gas, and was thereby overcome and rendered unconscious and wholly unable to use his limbs or in any way to escape said gas to a pure atmosphere, in consequence whereof the plaintiff remained in an unconscious condition, inhaling such gas for a long space of time, to wit, for the space of thirty minutes, and by reason of the inhalation of said gas by the plaintiff during the period aforesaid he was made sick and ill, and then and there became and was permanently paralyzed in the entire right side of his body, and his nervous system became and was from that time forth permanently injured and impaired to such an extent that he is, and during the remainder of his life will be, unable to pursue any calling requiring manual or mental labor, and has suffered great bodily pain and mental anguish and will continue to suffer so long as he shall live, and has been put to great expense in and about endeavoring to be cured of his said afflictions, all to the damage of the plaintiff in the sum of twenty thousand dollars; wherefore he brings his suit. And the plaintiff claims twenty thousand dollars besides cost.”
    
      Mr. A. S. Worthington and Mr. H. F. Taggart for the appellant.
    
      Mr. Frank W. Hackett and Mr. Randall Hagner for the appellee.
    1. It is not enough to allege that a duty exists upon the part of defendant, and that defendant has violated such duty. The facts must be stated showing a legal liability. 2 Thompson on Negligence, 1244. Unless the duty results in all cases from the facts, a declaration so framed is bad in substance. Brown v. Mallet, 5 C. B., 599.
    This is well illustrated in Buffalo v. Halloway, 7 N. Y., 493-
    So, too, in Smith v. Tripp, 13 R. I., 152, the declaration alleged that the defendant negligently maintained a highway, and so negligently suffered it to be out of repair as wrongfully to cause water to flow on land of plaintiff, which otherwise would not have flowed on plaintiff’s land, whereby, etc. The court sustained defendant’s demurrer, citing with approval Gautret v. Egerton, L. R. 2 C. P., 371.
    Conceding that the allegations are well pleaded, they amount to nothing more than that plaintiff, in compliance with defendant’s direction, entered a certain trench; that gas escaped.into the trench while plaintiff was at work there, and that plaintiff inhaled said gas.
    Neither the trench nor the pipe in question is described. Nor are we informed what -the plaintiff was doing in the trench. The plaintiff mentions a certain purpose for which he entered it, viz., “ assisting the defendant,” but he does not say that he did anything. Whether or not he began to carry this purpose into effect, the declaration does not state.
    It is not alleged that it is usual and customary to cut off gas from street-pipe, or that gas companies have the means of so doing. That is to say, there is no charge, in apt terms, that the defendant company failed to resort to appliances reasonably to be required of it, stating what those appliances are.
    There is no allegation that the pipe was one that gas could be cut off from, nor are any facts set out to the effect that defendant performed unskillfully what it was in its power to do.
    2. The declaration is silent not only as to the character and size of the trench, and of the pipe, together with the nature of the work in which plaintiff was engaged, but it says not a word as to what person, other than the plaintiff, was then and there employed.
    3. The escape of gas is incident to the business of laying down and taking up gas pipe. The risk of being overpowered by gas in an open street is one that laborers who enter trenches assume. The declaration should aver that the plaintiff had no means of knowing the danger in this particular case; in other words, that the gas escaped in such volume as to overcome the plaintiff, and that he could have no knowledge that it was so escaping. R. R. Co. v. Corps, 124 Ind., 427.
    4. The declaration fails to charge any particular person or persons with neglect. It says that “The defendant did not cause said illuminating gas to be shut off from said pipe, or prevent it from entering said pipe, and did not prevent the same from escaping therefrom into said ditch or trench, but carelessly and negligently allowed said gas to escape therefrom into said ditch or trench, while the plaintiff was at work therein.”
    The declaration fails to charge any servant of the* defendant with neglect. In an action by an employee against a corporation seeking damages for personal injuries sustained while in the course of his employment, it is not sufficient for plaintiff to allege that defendant corporation omitted to do an act. The plaintiff must specify some agent, or servant, of defendant who was at fault.
    If that person proves to have been a fellow-servant of the plaintiff, it is clear that plaintiff cannot recover, unless he alleges and proves that defendant corporation was negligent in the employment, or in the retention, of such servant. R.R.Co. v. Brough, 149 U. S., 411. See a recent decision in Rhode Island, Di Marcho v. Builders' Iron Foundry, 27 Atl., 328 (1893).
    In a suit against a railroad by an employee, whose declaration charged that the company by its negligence in the management of its engines, and by failure to provide rules 
      
      and regulations, caused an injury, the court held that this was a direct, charge of negligence against the defendant itself, and good on demurrer. Hilderbrand v. R. R. Co., 47 Ind., 399 (1874). The practice in Indiana is to move that plaintiff make a more specific statement. Here, too, as well as in Wild v. R. R. Co., 21 Oregon, 159, the real charge in the declaration was a neglect to prescribe rules, a fault to be imputed rather to a superior officer than to a- fellow-servant.
    In a late case in Kansas the declaration by a car-repairer against a railroad company set out that the injury occurred “ by the gross carelessness and negligence of the defendant, its agents or servants.” On a petition to make more specific, held, that plaintiff must show to which servant or servants of the company negligence is imputed; and fully and definitely state what acts or omissions of such servants constitute the negligence complained of. R. R. Co. v. O'Neill, 30 Pacific Reporter, 470.
    In Illinois, where a declaration in action of servant against master charged that the act was that of a servant of the corporation, held, that it must be averred that the servant was not a fellow-servant of the plaintiff; nor is the omission cured by verdict. Steel Co. v. Shields, 134 Ill., 209.
    There being nothing in the present declaration to indicate who it was that negligently allowed the gas to escape, it does not appear that the alleged neglect was not that of a fellow-servant, for which defendant is not liable.
    5. There is no sufficient allegation that the defendant by act or omission caused the injury of which plaintiff complains. It is alleged that the gas escaped into the trench in consequence of the negligence and carelessness of the defendant. But it is not alleged that the plaintiff was injured in consequence of such neglect.
    The plaintiff does not allege that he made the least effort to avoid the danger. The alleged injury is described as consequent upon a state of unconsciousness. -That state is averred to have been consequent upon the plaintiff’s inhaling gas, and continuing to inhale it. There is no averment that plaintiff could not have avoided this peril of continuing to inhale gas.
   Mr. Chief Justice Alvey

delivered the opinion of the Court:

This is an action brought by the appellant, Thomas Hines, against the appellee, the Georgetown Gas Light Company, to recover damages for personal injuries suffered by the former while in the service and employment of the latter, caused, as it is alleged, by the negligence of the appellee. The declaration was demurred to, and the demurrer was sustained, and the declaration adjudged to be insufficient to show a good cause of action. Whether the demurrer was properly sustained is the only question presented on this appeal.

The Gaslight Company, the appellee, having occasion to open] a trench and take up and replace some of its pipe used for the transmission of gas, directed the appellant, then an employee of the company, to enter the trench and take up the gas pipe; and while the appellant was so employed the gas was allowed to escape, which was involuntarily inhaled by the appellant, and he was made seriously sick and suffered great bodily injury therefrom. The principal act of negligence alleged was the failure or neglect of the appellee to turn off the gas while the appellant was employed in the trench, moving and replacing the pipe. ■

In actions to recover damages occasioned by the negligence of the defendant, it is a well settled principle of pleading, that the declaration must allege and show sufficient facts on which a duty is founded, which it is incumbent upon the defendant to perform in respect to the rights and safety of the plaintiff. This is a fundamental principle of pleading, and the foundation of the right of action in such cases is the breach of the duty thus shown. In the absence of facts to show such a duty and a breach thereof no cause of action is shown. Gautret v. Egerton, L. R., 2 C. P., 371; Collis v. Selden, L. R., 3 C. P., 495.

It is also a settled principle of law, that when a master employs a servant in a work of a dangerous character he is bound to take all reasonable precautions for the safety of the workman. The master must not unduly expose the servant in a dangerous work without taking proper precautions for the safety of the servant; and if the master is aware of any special danger attending the work not known to the servant, it is the duty of the master to inform the servant that the danger may be avoided. But if the servant is himself aware of all the risk or danger attending the employment, and he does not take the necessary care or precaution to avoid the danger, and he suffers injury in the course of the employment, he becomes the author of his own misfortune, and the master is not responsible therefor. In other words, there must be shown a clear breach of duty on the part of the master, the consequences of which could not have been avoided by the servant, by the use of reasonable care and precaution on his part, under the circumstances of the case. And the allegation that the defendant, the master, was guilty of the act of negligence or wrong charged, is well supported by proof that the negligence or wrong was committed by the servants or agents of the defendant in the course of their employment. Brucker v. Fromont, 6 Durnf. & East, 659; M’Manus v. Crickett, 1 East, 110; Wheatley v. Patrick, 2 M. & W., 650; Bank v. Guttschlick, 14 Pet., 19, 27.

■ Now, in the light of these general principles, we will briefly examine the allegations of the declaration, and determine whether the facts stated are sufficient on demurrer.

The declaration first alleges the nature of the business of the defendant and the manner of conducting the same. It then alleges that the illuminating gas, manufactured and distributed by the defendant, was and is noxious, deleterious, injurious and deadly to human beings when inhaled by them, and this the defendant knew; that while the defendant was carrying on the business of gas manufacture and supply, the plaintiff, being in its employment as laborer, was then and there required and directed by it, in the performance of his duty, to enter a certain ditch or trench in one of the highways of the city, in which ditch or trench there was a certain pipe, which was one of the pipes for the transmission and distribution of gas, and which pipe the defendant was then and there engaged in removing in sections, and in substituting therefor a new pipe; and the plaintiff, in obedience to his instruction and direction, then and there entered said ditch or trench, to work therein; and it became and was the duty of the defendant to have such illuminating gas cut off from said old pipe and prevented from entering the same, and to prevent such gas from escaping therefrom, at the point where the plaintiff was at work. Yet the defendant wholly neglected its duty in that regard, and then and there, and while the plaintiff was so engaged in the ditch or trench, in the performance of his work, the defendant did not cause such illuminating gas to be cut off from said pipe, or prevent it from entering said pipe, and escaping therefrom into said ditch or trench; but carelessly and negligently allowed the gas to escape from the pipe into such ditch or trench while the plaintiff was at work therein as aforesaid; and in consequence whereof, and while the plaintiff was ignorant of the defendant's carelessness and negligence, and was otherwise in the exercise of due care and diligence on his part, said gas escaped from the pipe into said ditch or trench while the plaintiff was at work therein, and the plaintiff, involuntarily, without negligence on his part, inhaled said gas, and was thereby overcome and rendered unconscious, and wholly unable to use his limbs, or in any way to escape from said gas to pure air, and in consequence whereof, &c., and by reason of the inhalation of said gas by the plaintiff, he has suffered great and permanent bodily injury, &c.

On the averments thus made we think a cause of action is shown. It is enough if there be certainty in pleading to a common intent; and we think this declaration, in the aver-ments we have recited, substantially shows a breach of duty on the part of the defendant, although it could have been more fully and explicitly stated. The business of the defendant, and the relation of the plaintiff to the defendant as employee, are sufficiently stated. It is then stated that the defendant had full knowledge of the noxious and dangerous quality of the gas, and that it had, by its direction, placed the plaintiff to work in a place of danger, in the course of his employment, and had omitted and neglected to shut off the gas, known to be noxious and deadly to those inhaling it, and thus failed to relieve the position of the plaintiff of danger, which it was in duty bound to do; and that, by reason of such neglect, injury accrued. It is true, there is no express allegation that the plaintiff was himself ignorant of the noxious and dangerous, quality of illuminating gas, and of the danger of his employment in the trench while removing and replacing the¡ pipes. But it is alleged that the plaintiff was ignorant of the defendant’s carelessness, and was otherwise in the exercise of due care and diligence on his part. The omission of the allegation of the plaintiff’s ignorance of the danger of the situation and of the work of his employment forms no sufficient ground of demurrer to the declaration in actions of this character. That was expressly ruled in the case of Watling v. Oastler, L. R., 6 Exch., 73. It is not necessary to allege in the declaration that the plaintiff did not, by his own negligence, contribute to the production of the injury complained of; nor is it necessary that the declaration should negative every possible state of facts which might afford grounds of defense. Whatever constitutes matter of defense should be set up by the defendant; and hence if the injury here complained of was occasioned by the negligence- of a co-employee or fellow-servant engaged in the same common employment with the plaintiff, and for whose negligence the defendant would not be liable to the plaintiff, that is matter of defense to be set up by the defendant, as an answer to the action. It could not be required of the plaintiff that he should allege such matters on the face of his declaration.

The present declaration would seem to be substantially in accordance with settled precedent; and several of such precedents have been tested on demurrer. Williams v. Clough, 3 H. & N., 258; Mellors v. Shaw, 1 B. & S., 437; Watling v. Oastler, L. R. 6 Exch., 73, 76. The declarations in the cases just referred to were not more particular and special in their allegations than the declaration in the present case.

We must reverse the judgment appealed from and remand the cause that the defendant may be required to plead, so that the cause be brought to trial.

Judgment reversed and cause remanded.  