Lannen v. . the Albany Gas-Light Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 461 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 462 Every legal proposition in this case, to which the facts therein give rise, is involved in the charge of the judge at circuit, "that Smith was the agent of the defendant and not of the plaintiff," and "that the defendant was liable, if the injury complained of was caused by his negligence in lighting the match;" and in the refusal to charge that if the leak, from which the gas escaped, was in the plaintiff's pipe and not in the service pipe put in by the defendant, the plaintiff was guilty of negligence which contributed to the injury. It was among the unquestioned facts in the case, that the loss of gas escaping, as it did in this case, from a place in the pipe below the meter, was the loss of the defendant and not of the plaintiff's father; that it was the defendant's custom to invite its customers to give notice of the escape of gas from the pipes; that it kept in its employ persons to examine and ascertain the location of the leak or leaks through which the gas escaped; that the notice given that the cellar was filled with gas was responded to by the defendant, by sending Smith to ascertain the cause. And thus the proposition charged by the court, that Smith was the agent of the defendant and not of the plaintiff's father, was clearly established; and, as a matter of course, if he was so careless in the discharge of the duty confided to him as to cause the injury complained of, the defendant was responsible. There was no evidence that the plaintiff's father was in any respect *Page 463 at fault for the break in that portion of the pipe from which the gas escaped. But concede it to be otherwise, and that in a drunken fit he had staggered against it and caused it to spring a leak. It is difficult to see how that contribution to the injury (if it may be so regarded), should shield the defendant. As well might an unskillful or careless surgeon, called to ascertain if a fracture existed and its location, excuse himself for negligence in respect to it by proving that his patron, being intoxicated, fell from a horse and caused the fracture. The judgment should be affirmed.