
    THE DISTRICT OF COLUMBIA vs. THE WASHINGTON GAS LIGHT CO.
    'Washington Gas Light Co. ; Injuries to Persons ; Liability of Original Wrongdoer in an Action Over ; Defects in Footwalk.
    
      ■l. The acts of Congress incorporating the Washington Gas Light Company gave it exclusive authority, subject to such conditions as should be imposed by the city authorities, to lay lateral pipes for the supply of gas to lot owners; the municipal ordinance of 1868, so far as it undertook to require this to be done by persons other than the gas company, was invalid and void.
    
      2. The gas boxes connected with service pipes are a part of the apparatus of the gas company, and it is liable for any damage to pedestrians caused by its failure to exercise a reasonable supervision of its boxes.
    3. Where one is liable in an action over and has received notice of the original action and had an opportunity to take part in that defense, evidence of what was testified to by a deceased witness in the original action is admissible in the action over.
    4. It is no defense to an action over by a municipality for the negligence of the defendant, whereby a recovery in damages was had against the municipality in the former action, that the injury for which the original recovery was had was caused by the neglect of the municipality to repair a defective sidewalk, unless proof is made that it had notice of such defect.
    5. Nor is the gas company relieved from liability to the municipality in the action over by the fact that the city authorities had so widened the footwalk that the box, from being originally near the curbstone, where it was less likely to cause injury to pedestrians, afterwards occupied a position in the center of the pavement, for the duty of the company is to keep its gas boxes in safe condition wherever they may be.
    At Law.
    No. 22,757.
    Decided May 27, 1891.
    The Chief Justice and Justices James and Montgomery sitting.
    Motion for a new trial on bills of exception in an action ■ over, to recover the amount of a judgment recovered against plaintiff, in a former action against him, by reason of the .alleged negligence of the defendant.
    
      Refused.
    
    Statement by Mr. Justice James :
    This is an action over to recover the amount of a judgment which the plaintiff was compelled to pay on account of the alleged fault of the defendant. The declaration avers that one Marietta Parker sued the plaintiff in this court, alleging, ■for cause of action, the duty of the plaintiff to keep a certain .highway in a safe condition, and plaintiff's neglect of that duty in permitting “ a certain deep and dangerous hole” to-exist in the sidewalk of the highway, into which hole the said Marietta, whilst carefully walking on said sidewalk,, stepped,.and was injured ; that plaintiff duly pleaded to said-action, and, on the trial thereof, a verdict was rendered for $5,000, for which verdict, with interest and costs, judgment, was rendered, which this plaintiff afterwards satisfied by the payment of $5,149.53; which sum, with costs, it seeks to recover in this suit. The declaration further avers that, at the trial of the former suit, the said “deep and dangerous hole”' was proved to be, and in fact was, “a certain open gas box,” placed and maintained in said sidewalk and street by the present defendant for its own benefit; avers the duty of the-defendant to so maintain said gas box as that injury should not be done by it, the failure of the defendant in that duty in-permitting the box to remain in a dangerous condition; the-injury suffered in consequence by Mrs. Parker, and that the-verdict and judgment in-the former suit were rendered for the injury so caused by the defendant. It is further averred that the defendant had notice of the trial of the former action against the plaintiff, and had opportunity to defend the same.
    The pleadings, verdict and judgment in the original suit of Parker vs. the District were put in evidence, and the plaintiff gave evidence tending to prove that on the 17th day of April,. 1879, before the trial of that case, the defendant was notified of Mrs. Parker’s claim against the District, and of the District’s intention to look to the defendant to make good any amount which it might have to pay on account thereof, and! that the sum of $5,149.33 was paid to Mrs. Parker by the-District, on the 16th of March, 1881, in satisfaction of said judgment.
    The plaintiff further gave evidence tending to show that the gas box mentioned in the declaration was placed by the.defendant in the sidewalk where the accident happened. In. reference to the injury itself, the plaintiff gave in evidence the deposition of Mrs. Parker, taken in this cause, in which she. testified, among other things, as follows:
    
      '“The accident occurred in front of 121 C street N. E., at about 5 o’clock in the afternoon of March 10, 1879. The immediate cause of the accident was an open gas box in about the center of the sidewalk; it was a perfect trap, as it was-upon a level of the sidewalk, except on the side I stepped into, and there was a part of a brick sunk at least an inch and a half below the level of the walk, so that any one in walking along could not see but the. pavement was level, until, like-myself, when too late. Had not the half of the brick been sunken the open hole would not have been so dangerous;, for, upon stepping into the hole, I tried to step back, when I found my box-toe shoe fast in the hole, and the sunken brick let my heel down with my whole weight one and a half inches.”
    The defendant further gave evidence tending to show that the stop-cock boxes were put into the sidewalk in August, 1873, at the request of one Linville and of Hammond & Gettinger, who were owners, respectively, of the premises connected with them; that the gas company furnished the materials and performed the labor necessary thereto at the request, of those parties, in the same manner as any other plumber or gas fitter would do; that the price for the labor and materials-was paid to the gas company by the house owners, respectively ; that the boxes were placed in the sidewalk within eight, or ten inches of the inner side of the curbstones, and were sunk in the ground so that their tops were flush with the surface of the walk; that the work was well done, and the company never had any notice that either of the boxes was out of order until some time after the accident to Mrs.-Parker;, that after they had been so put down the Board of Public Works changed the grade of the street at the point in question and removed the curbstones, on either side, four or fivfe feet nearer the center of the roadway, thereby leaving the boxes, in or near the center of the footwalk; that the gas company was not notified by the Board of Public Works that the-sidewalk- had been changed, nor called upon to move the boxes, ■and in fact had never interfered with, or in any way dealt with them after they were put down in 1873.
    The record states that the foregoing was all the evidence in the cause.
    II. The powers of the Gas Company are stated in section 7 •of the Act of July 8th, 1848, (9 Stat. at Large, 722,) by which it was incorporated. It provides : “ That the president and directors shall have full power and authority to manufacture, make, and sell gas, to be made of coal, oil, tar, pitch or tur- ' pentine, or any other material, and to be used for the purpose of lighting the city of Washington, or the streets thereof, and any buildings, manufactories, or houses therein contained or situated, and to lay pipes for the purpose of conducting gas in any of the streets, avenues and alleys of the said cityand also that the said company will so conduct the manufactories of gas as not to infuse private property or create a nuisance; provided, however, that the said pipes shall be laid subject to such condition, and in compliance with such regulations as the corporation of Washington may from time to time prescribe ; and provided further, that the right to erect or put up ■any buildings, works or apparatus for the manufacture of gas shall be subject to such terms, conditions, restrictions and regulations as the said corporation of Washington may or shall, from time to time, prescribe or direct.”
    Upon the foregoing testimony, and in view of this statute, the court gave, at the request of the plaintiff, the following instruction:
    “At and prior to the time of the accident mentioned in the declaration, it was in law the duty of the defendant to exercise reasonable supervision of the gas boxes placed by it and lying within the streets of the city of Washington; and if the jury find from the evidence that the defendant employed or procured no person or persons to examine or supervise, from time to time, the gas box mentioned in the declaration; that the said gas box was, and remained, prior to the accident mentioned in the declaration, uncovered and unprotected in the street for so long a time as to have enabled the defendant, with the exercise of reasonable diligence, to have known such fact, and to have remedied the same; that the said accident mentioned in the declaration was respectively alleged and denied at the trial of the cause, numbered 20,974 in this court, to have been occasioned by the fact that the said gas box was so uncovered and unprotected; that the defendant had sufficient notice or knowledge of the institution and trial of said cause to have enabled it to assist in the preparation and trial thereof, or that in fact it did so assist; and that the judgment mentioned in the declaration was recovered against and paid by ■the plaintiff, as alleged, the plaintiff is entitled to recover .in this action.”
    Messrs. Geo. C. Hazleton and S. T. Thomas for plaintiffs:
    While a municipal corporation, having the exclusive care and control of the streets, is, in a proper case, liable to one who is injured by reason of the defective condition of one of those streets, it yet has a remedy over against a private party who has so used the street as to produce the injury, unless the corporation concurred in the wrong. Such private party is concluded by the judgment against the corporation for his act or negligence, if he knew that the suit was pending and could have defended it, even though he had no express notice ■so to defend; but he is not estopped to show that he was under no obligation to keep the street in safe condition, or that the injury did not result from his act or neglect, or that the •corporation itself was also in fault. Chicago vs. Robbins, 2 Black, 418 ; Robbins vs. Chicago, 4 Wall., 657.
    The verdict and judgment against the corporation in such ■case are conclusive upon the party in original default as to the facts : (1) that the highway was defective ; (2) that the person was injured there while using due care, and (3) of the amount of damage by the injury; but not (1) of his liability to keep the place in repair, nor (2) of his having neglected (failed) to do so, nor (3) of his neglect or failure having been the sole cause of the injury. Boston vs. Worthington, 10 Gray, 496.
    And it is incompetent for the party in default to prove that in making a dangerous excavation he was guilty of no' negligence, or that he properly guarded and covered the same on leaving off work on the night of the injury. Portland vs. Richardson, 54 Maine, 46.
    The liability of the party in such cases is for the amount of the judgment against the corporation, with costs, interest and counsel fees. C. & O. Co. vs. County Comm’rs, 57 Md., 201; Stoughton vs. Porter, 13 Allen, 191; Woburn vs. Hensha, 101 Mass., 193; Port Jervis vs. First Nat. Bank, 31 Hun., 107; Troy vs. T. & S. Co., 49 N. Y., 657; Rochester vs. Montgomery, 72 N. Y., 65; Heiser vs. Hatch, 86 N. Y., 614.
    Messrs. Enoch Totten, W. D. Davidge, and Webb & Webb for defendant:
    “ The rule of respondeat superior, as the terms imply, belongs to the relation of superior and subordinate, and is applicable to that relation wherever it exists, whether between principal and agent or master and servant, and to the subjects to which that relation extends, and is co-extensive with it, and ceases when the relation itself ceases to exist’.’ Blake vs. Ferris, 5 N. Y., 54. The doctrine of respondeat superior is predicated of the right of the employer to discharge and control the servant. Kelly vs. N. Y., 11 N. Y., 432; Blake vs. Ferris, 5 N. Y., 48. There can be but one responsible superior for the same subordinate, at the same time and in respect to the same transaction. Laugher vs. Pointer, 5 B. and C., 560; Blake vs. Ferris, 5 N. Y , 48. “ The doctrine of respondeat superior is based upon the right of the employer to select his servants,, to discharge them if careless, unskillful or incompetent, and to direct and control them while in his employ.” Ham vs. Mayor, 70 N. Y., 459, 462. The same doctrine has been asserted by the Supreme Court:
    “ The principal is liable for the acts and negligence of the agent in the course of his employment, although he did not authorize or did not know of the acts complained of. So long as he stands in the relation of principal or master to the wrongdoer, the owner is responsible for his acts. When he ceases to be such, and the actor is himself the principal and master, not a servant or agent, he alone is responsible.” R. R. Co. vs. Henning, 15 Wall., 657.
    The authorities relating to this question are exceedingly numerous ; those who may be desirous of examining the doctrine fully can find the cases collected in Story on Agency, sec. 454; Wharton on Neg., sec. 156; Cooley on Torts, 531 ; Shearman & R. on Neg., 71; 2 Thompson on Neg., 884; Wood on M. & S., chap. 17; 2 Dill, on Corp’ns, sec. 974, and notes.
    This gas box is a substantial contrivance, and of such a character as to warrant the presumption that it would not readily get out of repair; this is especially true when it is placed near the curbstone, as required by the ordinance, and where this one was placed when completed for the owners of the houses. There was no necessity fbr extraordinary watchfulness and caution. The company was not bound to maintain an extra force of men to look after these stop-cock boxes. The degree of care must be commensurate with the extent of the danger, and no greater. Wharton on Neg., sec. 955; Holly vs. Gas Co., 8 Gray, 123.
    The gas company would in any event have been responsible for reasonable diligence only in repairing the-defect in the box after the defect was known or ought to have been known to it or its officers having authority respecting it. 2 Dill, on Corpns., secs. 1024,1025; Weightman vs. Washington, 1 Black, 32; Mayor vs. Sheffield, 4 Wall., 195; Dewey vs. Detroit, 15 Mich., 807.
    Notice of defects caused by the act of third persons is essential to liability. Hume vs. N. Y., 47 N. Y., 639; Fort Wayne vs. DeWitt, 47 Ind., 397; Mayor vs. Sheffield, 4 Wall., 646.
    Where the parties in interest are essentially different, though the subject-matter is the same, the evidence is not receivable. Norris vs. Monen, 3 Watts, 465; Perrin vs. Swaim, 2 Johns. Ch., 475; 1 Wharton on Ev., sec. 177; Morgan vs. Nickoll, L. R., 2 C. P., 117; Sample vs. Coulson, 9 W. & S., 62; Reynolds vs. U. S., 98 U. S., 155; Ruch vs. Rock Island, 97 U. S., 693; 
      Costigan vs. Lunt, 127 Mass., 355; Yale vs. Comstock, 112 Mass., 267; O’Brien vs. Corn, 6 Bush., 563.
    The parties were not the same. The defendant was not a party to the Parker case. Hume vs. N. Y., 47 N. Y., 639; Fort Wayne vs. DeWitt, 47 Ind., 397; Mayor vs. Sheffield, 4 Wall., 646.
    A person not a party to a judgment is not bound by it merely on the ground that he was present and cross-examined the witnesses. Turpin vs. Thomas, 2 Hen. & M., 139; Morgan vs. Nickoll, L. R., 2 C. P., 117; 1 Wharton on Ev., sec.. 177; Freeman'on Judgments, 154.
   Mr. Justice James

delivered the opinion of the Court:

The first question to be considered is, whether, in contemplation of law, the gas box in question was a part of the apparatus of the Gas Company, so as to make that company liable for injuries caused by its defective condition.

It is claimed on the part of the defendant that the authority given to the Gas Company by its charter to lay pipes in the-streets and avenues was limited to the laying of mains, and that, the distribution of gas from the mains to the consumers was designedly left to be accomplished in such manner as should be prescribed by the Corporation of Washington ; the latter being, as it is claimed, already possessed by its charter of ample authority to make the necessary excavations for that purpose, or to grant the privilege of so using the streets as it should see fit; that the corporation exercised that authority-in passing the ordinance referred to, and thereby authorized any lot owner to construct the lateral connections leading to-his lot, and that in pursuance of that ordinance the gas box complained of was actually put in at the cost of, and was-owned by the lot owner, and that consequently the latter, and not the defendant, would be liable for any injury caused by-its defective condition. The defendant’s contention as to the extent of its own powers was in the following words: “Authority is given, first, to manufacture, and, for. that purpose. to-erect the necessary buildings, works and apparatus; and, secondly, to conduct the gas thus manufactured into the streets,. etc. Here the powers granted to the defendant stopped.”

We think that the provisions of the statute are very simple,, and that they do not admit of any such construction. For sake of convenience, we repeat a part of its words. They authorize the company to make and sell gas, “to be used for the purpose of lighting the city of Washington, or the streets thereof, and any buildings, manufactories or houses therein contained or situated, and to lay pipes for the purpose of conducting gas in any of the streets, avenues and alleys of the city.” Neither punctuation nor. the mere order of words is allowed to have a conclusive control in the interpretation of a statute. The substantive grant in this case was of authority to make an extraordinary use of public highways. The effect,, therefore, of these provisions may be stated as follows : first, the Gas Company may ■ manufacture gas from any suitable material, and may sell it for use in street lamps and in houses; secondly — and in order to make effectual this authority to sell gas — it may lay conducting pipes in any of the streets. Of course it was intended that such “laying” should be done in the usual manner; that is to sáy, beneath the surface, so that the company was authorized to éxcavate the streets for the-laying of whatever pipes it was authorized to lay. As to lateral pipes, it was clearly the intent of the statute that the gas-which was to be sold for use in the houses should reach them, and therefore that pipes necessary to that end should be laid by some person. The question is, whether this statute provided that they should be laid by the Gas Company. If this power was not granted to the Gas Company by this statute none of these works could be constructed at all, and the intent of the statute would fgil unless authority to construct them had already been granted to the Corporation of Washington. To meet this exigency, it is claimed, on the part of the defendant, that powers which included this authority had already been given to the municipal corporation, and that it was, for good reasons, the intention of Congress that the whole matter of the distribution of gas — in other words, the lateral connections — should remain under the sole control of the city corporation. We have, therefore, to consider the powers of the latter.

Section 7 of the Act of May 15, 1820, provided, among other things, that the corporation should have authority “to erect lamps in the streets, * * * to open and keep in repair streets, avenues, lanes, alleys, drains and sewers, agreeably to the plan of the city; to supply the city with water,” etc.

Section 8 provided, among other things, as follows: “ The said corporation shall have full power and authority to lay taxes on particular wards, parts or sections of the city for their particular local improvements; and, upon application of the owners of more than one-half of the property upon any portion of a street, to cause the curbstones to be set, and the footways to be paved on such portion of a street, and to lay a tax on such property to the amount of the expense thereof; provided, that such tax shall not exceed three dollars per front foot; and, upon a like application, to cause the carriage way ■of any portion of a street to be paved, or lamps to be erected thereon, and light the same; and lay a tax not exceeding the whole expense thereof, in due proportion, on the lots fronting ■on such portion of a street.” .

The amending Act of May 17, 1848, provided, among other things, that the corporation should have power’“to take up ■and relay foot pavements and paved carriage ways, and to keep them in repair, and to lay and collect taxes, for paying the expenses thereof, on the property fronting on such foot-ways and carriageways; * * * to cause new alleys to be •opened into the squares, and to open, change or close those already laid out, upon the application of the owners of more than half of the property in such squares,” subject to certain conditions relating to damages. «

These were the only provisions relating to the powers of the municipal corporation, in the matter of streets, that were in force when the gas company was chartered; and clearly none of these authorized the corporation to place such structures as lateral pipes and gas boxes in the streets. The powers of municipalities, especially those which involve expenditure of money and the imposition of taxes, are strictly construed. Power to make highways can not be held to include authority to make sub-structures which have no relation to the use of streets as highways; and power to provide sewers can not be held to include authority to lay gas pipes, and for that purpose to make excavations. These lateral conductors, then, and the necessary excavations, were not authorized at all, unless the act incorporating the gas company authorized that company to provide and lay them.

On the other hand, that act seems plainly enough, both by implication and by express terms, to grant the necessary authority to the Gas Company. By implication, because power to sell gas, to be used in houses along the streets, imports that the conducting pipes, which the seller is authorized to lay in the streets, are to include pipes which shall conduct it to the purchaser. And by express terms, because the special power to lay “ pipes” applies j ust as descriptively to lateral as to main pipes. Not a word in the statute suggests the distinction of main conducting pipes and “distributing” pipes. In the sense of this statute there is no such thing as a distributing pipe; they are all conducting pipes; and they are pipes for conducting gas in the streets, when laid anywhere between the building lines. The word “ street,” when used in respect of a power which is not peculiar to a carriageway— as when the use of streets is granted to a railway — applies to the whole street, including sidewalks and carriageway alike. It has been so held in reference to municipal powers. See In re Burmeister, 76 N. Y., 174; In re Phillips, 60 N. Y., 16; In re Smith, 52 N. Y., 526; Jackson vs. Mahan, 100 Ind., 342; Dickson vs. Worcester, 138 Mass., 555; Dooley vs. Sullivan, 112 Ind., 451; Warner vs. Knox, 50 Wis., 429; State vs. New Brunswick, 44 N. J. L. R., 46. Such, too, has' always been the interpretation of that clause of the organic act which provided that the Board of Public Works should have entire control of, and make all regulations which they should deem necessary for keeping in repair “ the streets, avenues,” etc., of the city. No one ever doubted that the words “ streets and. avenues ” included the sidewalks. And indeed this application of the word is insisted on by the defendant’s own contention that the city corporation already had authority to lay these lateral connections; for that contention seems to rest upon its alleged control over the streets.

Another proposition touching this question of authority-remains to be considered. The provision -which authorizes, the Gas Company to lay pipes is coupled with a proviso, to-the effect that “ the said pipes” — that is to say, the pipes laid by the company — should be laid subject to such conditions and in compliance with such regulations as the corporation of Washington should prescribe. It is to be observed that this provision explicitly required that the pipes affected by the “ conditions” should actually be laid only by the company. In other words, the so-called “ conditions” could not be such as to determine whether the Gas Company should be allowed to lay certain pipes, or who should exercise the-power; but could only be such as related to the manner in which the pipes to be^laid by the Gas Company should be laid. Of course the municipal authorities could not, under the pretext of conditions, take away any part of a privilege-granted by Congress. Yet, the ordinance of 1868 did undertake to declare that what Congress had authorized the Gas-Company alone to do should not be done by it, but by somebody else. To that extent the ordinance was a nullity.

We hold, then, that notwithstanding the cost of making this lateral connection, including the gas box in question,, was paid by the lot owner, that structure was put there by the-defendant in the exercise of its own exclusive authority, and was in contemplation of law a part of its apparatus.

We understood at the argument that the responsibility of the defendant for its condition in that case was not disputed. We cite, therefore, only a single case; and we cite this only because it well states the high degree of this responsibility to the public. In Holly vs. Boston Gas Light Company, 8 Gray,. 124, the court said: “The defendants, under their charter, were in the employment of a great and peculiar privilege; that of supplying the means of light to all parts of the city. This devolved upon them a corresponding degree of responsibility in the conduct of their business, and in the preservation of every part, of their apparatus from defects by which the public at large might be subjected to great inconvenience, and particular individuals might be exposed to imminent peril and danger in respect of their property and lives. They were,, therefore, under the highest degree of obligation to be at all times in a state of the most ample preparation to meet, with all reasonable promptitude and dispatch, whatever exigency-might occur requiring their attention.”

The jury were properly instructed, then, that “it was in law the duty of the defendant to exercise a reasonable supervision of the gas box placed by it in the streets of Washington.”'

It is objected, however, that there was no evidence which justified a submission of the question of-negligence on the-part of the defendant; in other words, that there was no evidence to show that the gas company had knowledge, before-the accident, that the gas box was. out of repair. The particular point of the exception is, that the evidence on that: subject was incompetent. It consisted of a repetition, by the stenographer who took down the proceedings at the trial of’ Parker vs. The District, of the testimony given at that trial by a witness who had since deceased; and was to the effect that the gas box in question had remained uncovered and in a dangerous condition for several weeks before the accident to Mrs. Parker.

In the cases cited in support of this exception, such evidence was properly excluded on the grouhd that the party against whom it was offered was a stranger to the action in which the evidence was originally given. We think that such evidence is admissible in what is called‘“an action over,” on the ground that, having received notice of the trial of the original action, and having had the opportunity to take part in that defense, and to cross-examine the witnesses, he is not a stranger to such former action. When the law has afforded to such a party the same opportunities and guaranties for securing the truth which it affords to a party to the record, it regards him as having in that respect the status of a party. Mr. Greenleaf, whose explanation of the principle was commended by the Supreme Court in Lovejoy vs. Murray, 3 Wall., 18, describes him as “a party in the larger sense.” 1 Greenl. Ev., secs. 523, 525. See also Robbins vs. Chicago, 4 Wall., 657 (672). Of course it is not necessary that there should have been an actual cross-examination, if the opportunity was afforded. Carzenove vs. Vaughan, 1 M. & Selw., 4; McCombie vs. Anton, 1 M. & G., 27. If it was the duty of the defendant to see to it that its gas boxes in the highways should not injure any person by reason of being out of repair, it had ■all the interest that a technical party could have in the question whether a defect had existed, and had existed long enough to charge it with notice. The subject-matter of the former evidence was common to the District and itself, and their opportunities for truth and guaranties against mistake or falsehood were the same. We think that every condition was satisfied which should make the evidence of the deceased witness at the former trial competent evidence against the defendant in the “action over.”

It is next objected that the recovery against the District was for an injury caused partly by the open gas-box and partly by the depression of an adjoining brick; that the latter was a defect in the sidewalk for which the plaintiff alone was responsible ; that consequently the plaintiff was^a joint ^wrongdoer, and therefore could not recover at all in this action over. The principle as to joint wrongdoers is correctly stated; but, if it be conceded that the recovery was for an injury caused by the combined operation of the two defects, we do not perceive that there is any ground for holding that the plaintiff was, in respect to this depressed brick, a wrongdoer at all. As was remarked by the court in its charge, there was no evidence in this case tending to show that that depression .occurred in the original construction of the sidewalks, or when it occurred. In other words, there is no evidence to show that the plaintiff had notice, before'the accident, that such a defect existed, so as to be guilty of negligence in failing to repair it. Whatever the defects on which the judgment may have been based; the' rule as to joint wrongdoers can have no application in the absence of proof that the plaintiff was a wrongdoer as to one of them ; that is to*say. in the absence of proof that the plaintiff was liable for the depressed brick.

It is further objected, however, that no recovery ever can be had in this action, even if the plaintiff was not a wrongdoer in respect of the sunken brick; the contention being' that the judgment against this plaintiff, nevertheless, included damage done by that defect, and that this defendant, at all events, is not responsible for the latter. The further contention, of course, is that, as the judgment is not apportion-able, nothing can be recovered if a part cannot. We think that this objection is not tenable.

The defendant’s own hypothesis in making it is that Mrs. Parker's foot was caused to sink into the depression adjoining the open gas box. In that case the open gas box was, in , contemplation of law, the causa próxima of the whole injury. When one person, either maliciously or carelessly, throws another into an excavation — and that is just what this defendant is alleged to have done — it is no excuse that he did not make the excavation, and is not responsible for it.

His own act is, nevertheless, causa próxima of the. whole damage. If the original action had been directly against the defendant instead of the District, the recovery would properly have included the damage partly done by the depressed brick, if the evidence showed that the open gas box threw her foot into that depression. It is no more a defense in this action over than it would have been in a direct action, that the gas company was not responsible for the existence of the cavity into which its negligence threw her.

It will be observed that we differ from the instruction given in the charge on this point; but whatever errors there may have been in the views of the court was in favor of the defendant, and, therefore, is not a ground of exception on its part.

Finally, it was objected that this gas box, having been originally placed, in obedience to the ordinance of 1868, near the curbstone, where it was not likely to cause injury to pedestrians, had been caused by the Board of Public Works to occupy the center of the sidewalk, where it was' more dangerous. We do not perceive the importance of this suggestion. The Board of Public Works had the same authority to determine the position of the gas boxes which the corporation of Washington had possessed, and if it did cause this gas box to be more likely to do mischief unless it were well looked after, it did not relieve the defendant of its duty to so look after it. It is the defendant’s duty to keep these gas boxes covered, whatever place they may occupy in the highway, and to be all the more careful to do so when they are in a dangerous place. As the Supreme Court of Massachusetts said in the case above quoted, the privilege which it has received charges it with an assiduous duty.

Judgment affirmed.  