
    The German-American Insurance Co, Plaintiff, v. The Standard Gas Light Co., Defendant.
    (Supreme Court, New York Trial Term,
    April, 1901.)
    Negligence — Employee applying a lighted match to a gas pipe— Sub- ■ rogation of insurer of loss.
    A gas company, furnishing gas to a consumer conducting a picture store, sent its workman to place a drop-light over his desk without charge. A strong smell of gas was detected after the workman had completed the job and left, and upon his return, in a short time, he attempted to find the leak by applying a lighted match to the pipe. A fire ensued.
    Held, that the gas company was liable to the consumer for the gross negligence of the workman and that an insurer of the consumer, duly subrogated to his rights, might recover of the gas company the loss paid to the consumer.
    Action by plaintiff claiming to be subrogated to the rights of Theodore Seiz, whose property was insured by plaintiff under a policy giving it the right of subrogation in case the property was injured by fire through the negligent acts of others. Plaintiff charges that defendant’s negligence caused the fire and damage complained of and sues to recover the amount paid.
    William D. Murray, for plaintiff.
    Goodwin, Thompson & Vanderpoel, for defendant.
   McAdam, J.

The only question reserved at the trial was whether there was sufficient evidence to establish negligence on the part of defendant so as to make it liable for the -fire which occurred at the premises of the insured, Theodore Seiz, at Ho. 30 West One Hundred and Twenty-fifth street, Hovember 25, 1898. Seiz wanted a drop light put on his desk in the store, which contained a stock of pictures and frames. The gas company, which supplied the insured with gas, undertook to do the work, and sent William H. Kavanagh, a workman in its employ, to carry it out. He went to work, made the connections, and left the premises. After the workman departed there was a strong smell of leaking gas. He came back to the store within a short time, and the insured then told him there was a strong smell of gas, and asked him to look over the work. Kavanagh lighted a match and applied it to the gas pipe, whereupon a flame issued from the pipe and caused the fire, which damaged the insured to the extent of $1,000. No neglect is imputable to the insured. The injury was caused solely by the act of the workman. The defendant undertook the work without compensation, and claims, therefore, that its liability was merely that of a gratuitous bailee, and that, to entitle the plaintiff to recover, gross negligence on the part of the defendant must be proved. Whatever technical relation existed between the parties respecting this particular job, the defendant was bound to exercise the care which the nature of the work required. Gas is explosive, and leaks in pipes are apt to cause the ignition of escaping gas and produce serious fires, and a higher degree of care and vigilance is required in dealing with a dangerous agency than in the ordinary affairs of life or business which involve little or no risk of injury to persons or property. Koelsch v. Philadelphia Co., 152 Penn. St. 355, 18 L. R. A. 759; Schmeer v. Gas Light Co., 147 N. Y. 529; Anderson v. Standard Gas Light Co., 17 Misc. Rep. 625; Gas Fuel Co. v. Andrews, 50 Ohio St. 695, 29 L. R. A. 337. The defendant sent its workman, for whose acts it is responsible, to do the work in question. His attention was called to a smell of gas. He knew that “ sand holes ” might exist in the pipe, for such things, he testified, were not uncommon. Yet he placed a lighted match over the pipe, thus igniting the escaping gas and causing the resultant damage. Such conduct on the part of one knowing the consequences was negligence, and renders the defendant liable. See Burrows v. March Gas Co., L. R. (5 Exch.) 67. In Lannen v. Albany Gas Light Co., 46 Barb. 264; affd., 44 N. Y. 459, the defendant, being informed that gas was escaping in the cellar of an occupied house, sent its employee to ascertain the location of the leak, and the person so sent lit a match and caused an explosion which injured the plaintiff. It was held that if the employee was incompetent or ignorant it was negligence to select him, and that if competent the defendant was liable for his careless performance of duty. Although it is apparent in this case that the work which the defendant undertook to do was for the mutual benefit of defendant and its customer, the insured, and that the defendant was, therefore, bound to use ordinary care (Newhall v. Paige, 10 Gray, 366; Quinn v. Power, 87 N. Y. 535), it is unnecessary in this instance to apply that standard to defendant’s conduct, for the act of its employee was grossly negligent. Lannen v. Albany Gas Light Co., supra. “ The properties of the illuminating gas in ordinary use, its inflammable and explosive character, are well understood, and every person of mature years and ordinary intelligence cannot be presumed to be ignorant of them.” Lanigan v. N. Y. Gas Light Co., 71 N. Y. 33. The determination by a lighted match of whether a leak exists or its location in a gas pipe adjoining inflammable material in a well-stocked picture store is not only not a 'safe method, but one fraught with great danger. The plaintiff paid the insured $500 in satisfaction of its liability for one-half the damage caused by the fire. Thereupon the insured assigned to the plaintiff all his rights against the defendant to the extent of such payment, and under a clause in the policy the plaintiff became subrogated to the rights of the insured. There must be judgment for plaintiff.

Judgment for plaintiff.  