
    NORTHERN LIBERTIES GAS CO. vs. BRESLIN.
    The owner of a house damaged by an explosion of gas is not guilty of contributory negligence, because his tenant did not notify the-company that gas was escaping near the house.
    Error to Common Pleas No. 1, of Philadelphia County. No. 424 January Term, 1884.
    The facts of the case appear in the following portions of the charge of the Court.
    This is an action brought to recover damages sustained in an accident caused, as alleged, by the Northern Liberties Gas-Company not keeping in repair their pipes for the conveyance-of gas, so that an explosion occurred at the house owned by the plaintiff, and injured his property. The first point I make is that this Company is not liable unless they were negligent. If an explosion occurred which was not the result of their negligence or failure of duty, there can be no recovery against them. The first question for your consideration is,, had this defendant Company any notice of any want of repair, or anything that required their attention with respect to their pipes, either their mains or service pipes, at or about these premises ? The testimony upon that point on behalf of the-plaintiff is, that from time to time for a long time before that, there was a smell of gas noticed in the neighborhood. Nobody undertook to locate particularly where it came from, except that there was a smell of gas observed from time to-time. The only party who appears to give direction to it was-Mr. Beck, and he says he smelled it strongest when the wind was from the northwest, but that was away from the region where this explosion occurred. Where the explosion occurred was to the east of Mr. Beck’s; an east wind or a northeast. wind would likely bring it to him, but a northwest wind would indicate that the smell was coming from another quarter. I do not remember that anybody else but Mr. Beck gave any evidence that tended to indicate the locality. That one fact you must remember. There does not appear to be any evidence that the smell was noticed in the house where the injury occurred. The young lady who was on the stand this morning, was at work as late as half-past eleven o’clock, preparing, to put clothes in soak, and she did not smell any gas then. It -was smelled, however, shortly afterward by the officers who went in, and I think Mr. Harris testified to it. If you are satisfied there was no gas in the house at the time when the young lady put the clothes to soak, when it was there a short time aftewards, there must have been a sudden influx into the house. Gas of that nature is apt to make its presence known. If there be a quantity of gas in the cellar, it will find its way to the upper part of the house, and you will find it more or less strongly in various parts of the house. But none of the witnesses testified that at any time preceding the explosion there was any smell of gas in the house. Mr. Harris says that he did not smell the gas, because he was accustomed to the smell. He did not say there was no smell of it. He gave a reason for not smelling it. That there was a smell in the street, I think can reasonably be concluded from the evidence. Where it proceeded from, is not satisfactorily shown. When this explosion occurred, the holes caused by the explosion which were inspejted — especially the next day, when they could make a more particular examination than they could that night — when the holes were inspected, it was found that the pipe for the supply of the gas was broken, and that there was a break also I think in the culvert. There is no testimony direct as to how these breaks were caused. Clearly there was a break in the water pipes, and it was shown that the earth had oozed or been washed away by the flow of the water, leaving the gas pipe without any support, and under the pressure upon it, and the want of support, it broke. The theory of the plaintiff is it was broken by the explosion.
    I want to say to the jury that from an inspection they can see the character of the pipe. ■ These two plans (indicating diagrams in evidence) give the position of the pipe. You will have them out with you and you can examine them to aid you in your consideration of the question as to how the pipe was broken, whether by explosion or by strain. ■ However, there appears somehow or other to have been a flowing of gas into this house from some cause or other, and an explosion consequent upon it. Now if this were sudden, without any premonition to the defendant Company, they would not be liable unless they had some notice either from the smell of gas in the street, or from direct information — of which there has been no testimony at all, other than that which Mr. Beck gave of having spoken to the meter inspector some six months before the explosion, that there was a smell of gas about there that required attention. Of course it was the duty of the Company if they had notice of an escape of gas to look after it, not only with respect to the public, but to their own interest, which should have led them to do so. Then as against this you have the testimony of the inspector upon these very premises within a week of the time of the explosion, who says that he discovered nothing wrong at that time. He had not been there previously for a week or ten days before the time of the explosion, having been in another district. You will take all this testimony and weigh one against the other, and arrive if you can at a just conclusion respecting the cause of the explosion. All That I can say is if there was anything to indicate to the company that there was a matter which required their attention and they neglected to give it attention or failed in their duty and the explosion occurred in consequence of it, they would be liable. If on the contrary, there was nothing to call their attention to it, and the explosion was caused by some sudden accident happening to the pipes which caused the gas to escape, permeating the earth and getting into the house and producing the explosion, then they would not be liable.
    The Court then charged the jury as to the measure of damages if they found the Company guilty of negligence.
    The jury found a verdict for plaintiff for $1,000.
    
      The Gas Company then took this writ of error, assigning the following errors :
    1st. The learned Judge erred in overruling the defendant’s objection to the plaintiff’s question to Jacob P. Beck, viz :
    “Did you give notice to any person connected with the Northern Liberties Gas Works that gas was escaping on Callowhill Street, between Second and St. John’s Streets?”
    The ground of objection being that the agency of the person notified must be first proved, and that the notice offered to be proved, was not such a one as naturally connected with the accident or the cause of it, the notice not being of a leak at the place of accident.
    2nd. The learned Judge erred in refusing to strike out the evidence of Jacob P. Beck, that he gave notice of an escape of gas to one Neill, some four or five months prior to the accident, the notice testified to not fixing any place or direction from which the escape came, and no evidence being given that the person named was in the employment of the defendant. The motion to strike out being on the grounds of want of definiteness, also want of proof of authority on the part of the recipient of the notice, and also that the time of the notice was too far off. His Honor saying, “I overrule that. You have that already in your evidence.” Thereby bringing his ruling within the exception already granted to the admission of the said testimony.
    3rd. That the learned Judge erred in overruling the defendant’s objection to the plaintiff’s question to David Harris, a witness, viz:
    “Did you notify any one of the men employed by this Company, defendant, to inspect the meters at your place of business, that this gas was escaping ?”
    The objection being on the ground that no time was mentioned in the offer, and that no employment had been shown on the part of the person notified.
    4th. That the learned Judge erred in refusing to affirm the defendant’s ninth Point, viz:
    
      “If the jury find from the evidence that David Harris, the tenant of the house injured by the explosson, was aware prior to the accident that gas was escaping in the immediate neighborhood of the said house, and did not communicate the fact to the defendant corporation, then and in that case he was guilty of contributory negligence, which under the law is attributed to his landlord, Breslin, and the verdict must be for the defendant.”
    5th. That the learned Judge erred in refusing to affirm the defendant’s eighth point, viz:
    “That under all the evidence the verdict must be for the defendant.”
    
      Henry Budd. Esq., for plaintiff in error,
    argued that negligence cannot be inferred from the explosion, but must be proved; Spencer vs. Campbell, 9 W. & S., 32; Lassel vs. Buchanan, 51 N. Y., 476; R. R. Co. vs. Zemindar; L. R., 1 Ind. Ap., 364; Strawbridge vs. City, 2 Penny, 419. The company had two inspectors to visit every point on its line every six weeks; and an inspector who examined the meters every three-months. It had a complaint book at its office. And if they repaired leaks and defects within a rersonable time after they received notice, they were not negligent; Holly vs. Boston Gas Light Co., 8 Gray, 123. Harris should have complained to the Company; and his failui e to do so was such negligence as-bars the right of his landlord to recover; Holden vs. Liverpool Gas. Co., 3 Man. Gran. & Sc., 1. Bartlett vs. Gas Light Co., 117 Mass, 533; Holly vs. Boston Gas Light Co., 8 Gray, 123; Lanigan vs. N. Y. Gas Light Co., 71 N. Y.. 39. The admission of evidence of notice to the Company without proper proof that the person notified was an employee of the Company, was error; Wharton’s Evidence, §1183.
    
      H. & C. Gilpin, Esqs., contra,
    
    cited Kibele vs. City, 14 W. N. C., 393; Oil City Gas Co. vs. Robinson, 99 Pa., 1; McLaughlin vs. City of Corry, 77 Pa., 109; Fritsch vs. City of Allegheny, 91 Pa., 226.
   The Supreme Court affirmed the judgment of the Common Pleas on February 2nd, 1885, in the following opinion:

Per Curiam.

We discover no error in the admission of evidence. The order in which it should be given rests in the sound discretion of the Court. There certainly was sufficient evidence of the agency of the persons notified to send the case to the jury. There was no error in refusing to affirm the points covered by the fourth and fifth assignments of error.

Judgment affirmed.  