Diehle v. United Gas Improvement Co.

Opinion by Me. Justice Beown, On the argument of this appeal we were much impressed by what was said by the learned counsel for appellant in asking us to reverse the judgment in favor of the appellee, but our subsequent examination of the evidence has satisfied us that the single question in the case — appellant’s negligence —was for the jury. That the appellee was injured by an explosion of gas which came from the pipes of the appellant was clearly established. At the time of the explosion he was in the employ of the Millard Construction Company, which was engaged in excavating the bed of Market street, between Sixth and Seventh streets, in the city of Philadelphia, for the construction of a subway. The excavation was on the north side of Market street, just west of Sixth. Its north edge was about two feet south of the north curb of Market street. The appellant, the United Gas Improvement Company, maintained certain gas mains at the corner of Sixth and Market streets. A ten-inch main ran east and west on Market street, between the north curb of that street and the north line of the excavation. A six-inch main ran north and south on Sixth street, three feet and ten inches east of the west curb of that street. It crossed and connected with the ten-inch main on Market street through an appliance called a “ cross,” which was also north of the subway excavation. To guard against any injury which might result from the escape of gas from its pipes at Sixth and Market streets, where the excavation for the subway was in progress, the appellant had employed a man named Leans, whose duty it was to patrol both sides of the street that was being excavated for the purpose of detecting the odor of escaping gas, and, if the same was detected, to report the escape at once to the company’s office. William H. Smith, a superintendent of the defendant company, testified as follows: “We had a man named Frank Leans that we — 500 — called a watchman. His duties were to patrol both sides of the street that was excavated looking for any defects so far as the odor of gas was concerned and report to our office. . . . Q. Was Mr. Leans the only man there in the employ of the United Gas Improvement Company, and was he stationed at that very section at night on the night of October 4th? A. He was the only man under instruction to patrol. Q. And to report any trouble? A. Yes, sir. . . . Q. What was your system at night when no work was being done by the construction company? A. We simply kept the watchman for to patrol in case there would be any settlement and bring about a rupture of the pipe and, consequently, the odor of gas, and he would notify us. . . . Q. You said that it was a part of Mr. Leans’ duty if there was an unusual odor of gas there to report it to the office, is that so? A. Yes, sir.” The following is from the testimony of Samuel B. Turnier, a foreman employed by the appellant and called as a witness by it: “Q. Leans was the only night man you had there that night? A. Yes, sir. Q. He was under your control; you were his boss?. A. To start him in at night. He had a paper where he had to go around — he would leave the box, you see, and he would go around and come down to Broad and Arch, and he would ’phone and keep going all the time. Q. He made all his reports by ’phone there at Broad and Arch? A. Yes, sir; and if anything happened, and he had ’phones all around the neighborhood. Q. He had ’phones all around the neighborhood which were there for his use? A. No, not only for his use. Q. But he was instructed to use them in case there was anything wrong? A. Yes, sir.” After stating that the duty of his men was to notify him at once if there was any faint smell of gas, no matter where it was, this witness further testified as follows: “ Q. That was also Leans’ duty was it, the night man? A. He was to report right to the office. Q. It was his duty if there was a faint odor of any gas to make a report? A. Not to go near it himself but to call the office. Q. To call whoever were in charge of the office and notify them to that effect? A. Yes, sir; he was in my charge when I started in at night. To be sure there was — 501 — a man there at night. Q. And you told him when he started in that if he smelled any gas he should report it to the office? A. Not only that, but the next morning he should give me a note of what happened. . . . Q. Your men, that is, the employees of the United Gas Improvement Company, were the only men who were permitted to make any repairs or have anything to do with your gas mains? A. Yes, sir. Q. You would not permit anyone else to have anything to do with it? A. Yes, sir, even if there was a dead main along there we would not allow anyone else to break it out.” Leans was on duty on the night of October 4,1906, and was told by the appellee, between nine and ten o’clock, that there was an “awful leak” of gas at Sixth and Market streets. The appellee had noticed the odor of gas throughout the entire day, which seemed to grow stronger towards evening. Other witnesses testified that they noticed this odor during the night and, as the night wore on, it became heavier. The reply of Leans to the appellee, when told of the escaping gas, was, “Go on back, that is all right, there is no danger there.” This, without more, was sufficient to submit to the jury the question of the appellant’s negligence. The explosion occurred at 6:30 on the morning of October 5, and the appellant had received actual notice of the escaping gas nine hours before. Well knowing the duty that rested upon it of exercising a high degree of care to prevent the escape of the dangerous substance under its exclusive control, and of promptly staying such escape when notified of it, the appellant had employed a watchman to give it instant notice of any escape of its gas; but he was faithless, and the law charges his infidelity to it. Notice to him of the escaping gas was notice to his employer, and, no matter how it escaped, the company could not permit the escape to go on imperiling life and property. Its unquestioned duty was to act the instant the escape was brought to its attention. Much more, however, was proved than the notice to Leans between nine and ten o’clock of the night of October 4th that the gas was escaping. At about two o’clock on the morning of the 5th Diehle hunted him up and told him that the gas was so strong — 502 — he could not work. Leans walked up with him to the hole at Sixth and Market streets where he had been working, but declined to do anything. For an hour or two before this there had been a heavy rainfall, and there were holes and depressions in the street, to which the attention of Leans was called, but again he did nothing. His reports to his company throughout the night were that everything was “O. K.” That he failed in the discharge of the duty which had been imposed upon him by his employer was a fact that the jury were bound to find. As stated, nine hours before the explosion occurred he was first told of the escaping gas, and continually afterwards by several persons, but he paid no heed to it. If he had reported promptly, as was his duty, the cause of the escaping gas might have been discovered and the flow stopped. If the escape of gas was due to the fracture of the pipes, caused by their sinking after having been undermined by the rain or by water from a broken sewer, the gradual sinking might have been stayed within the time that elapsed between the discovery of the holes and the depression in the street and the explosion, and the fracture might have been prevented. Without taking from the jury the question of a leak from a defective joint, the court expressed the opinion that the weight of the evidence was that the gas had not so escaped. The finding of the jury evidently was that the escape was due to a fracture in the pipe, but, be this as it may, under the evidence there were three questions of fact for their determination, which were resolved against the defendant: First, was the gas escaping from the pipes of the defendant company for nine hours before the explosion occurred? Second, did the employee of that company, whose special duty it was to be on the watch for escaping gas, know that it was escaping and fail to give notice to the company? And, third, was there sufficient time after he knew the gas was escaping to have stayed the further escape before the explosion occurred? The answers to the points, which are assigned as error, were correct, and, as the case could not have been taken from the jury, the judgment is affirmed.