Bartlett v. Boston Gas Light Co.

Wells, J. The injury to the plaintiff’s house, of which he complains, resulted from the explosion of gas ignited therein by his tenant. The ruling at the trial was that if “ this explosive gas was allowed to accumulate in and under the house of the plaintiff ” by the negligence of the defendant company, then, although the plaintiff’s tenant “ by his negligence ignited this explosive substance, the defendant would be liable.” The negligence of the defendant consisted either in permitting a leak to occur through a defect in the main pipe in the street in front of the plaintiff’s house, or in neglecting to remedy the difficulty with sufficient promptness after it was discovered. Assuming that liability for such negligence would extend to injuries occasioned by the accidental ignition of gas which, after escaping from the pipes, had found its way through the soil or otherwise into a neighboring house ; and even that it would include injurious results to which the misconduct or negligence of a stranger contributed, we are opinion that a tenant, in the actual [538] and legal possession of the property injured, stands in such relation to it as to require the application of a different rule when the injury is due to his misconduct or negligence, as one of severa» causes by the concurrence of which it was produced. He is intrusted by the owner with the charge and contrcft of the property. He is, pro Tiac vice, the owner. The ruling at the trial was substantially that no degree or kind of negligence on the part of the tenant would affect the plaintiff’s right to recover. This we think was erroneous. If the tenant, upon discovering the presence of gas, in large quantity, in the house, neglected to give notice to the agents or servants of the defendant, or to take reasonable precautions to remove or exclude the gas, and recklessly brought the flame of a candle in contact with it, thus bringing about injurious effects which would not have followed but for such reckless or negligent conduct on his part, the defendant ought not to be held responsible for those results. Hunt v. Lowell Gas Light Co. 1 Allen, 343. Sherman v. Fall Liver Iron Works, 2 Allen, 524. Whatever of care was requisite for the protection of the premises under the circumstances was due from the occupant. The defendant as well as the plaintiff had a right to expect and require it of him. The measure of duty and the extent of liability of the defendant in respect to the property exposed to injury are not affected by the consideration whether the occupant who has charge of it is in fact owner in fee or tenant for years or at will. If the intervening misconduct of the occupant produced the explosion which was the immediate cause of the injury to the building, the plaintiff cannot charge the legal responsibility for that result upon the original negligent act or omission of the defendant. This conclusion does not rest upon the ground of any personal relation of agency between the landlord and his tenant, but upon the relation of the latter to the property as having the present control and charge of it, and therefore the one upon whom is devolved the duty to take reasonable care to prevent damage from such causes. The ground upon which it is sought to charge the defendant is the obligation imposed by law upon every one, in the use of his own property and conduct of his own business, to exercise reasonable care not to injure the persons or property of others. The responsibilities growing out of this obligation are [539] modified, and the liabilities arising from its disregard somewhat limited, by the correlative obligation, which rests upon every one, to use reasonable care to protect his own property against what may cause injury to it, and to prevent unnecessary damage. White v. Winnisimmet Co. 7 Cush. 155, 161. The plaintiff’s right to recover is subject to that modification and limit, and he cannot enlarge his right by intrusting the control of the property, and thus the obligation of due care, to another. Upon the question whether the defendant’s servants were negligent in respect to the taking of proper precautions to prevent injurious consequences from the leak, the regulations of the defendant, issued for the direction of its servants, were introduced. Among these regulations was one which authorized its servants, or such one as should be sent to attend to the difficulty, to shut off the gas, if in his judgment it should be necessary, with a precaution that “ he must always give such instructions to the occupant of the premises as will, if followed by him, preserve the property from injury and protect the persons of the household from accident.” If this precaution did not of itself require the regulation to be construed as applying only to shutting off the gas from the separate houses, there was a latent ambiguity which it was competent to remove by the paroi evidence offered for that purpose. The instructions upon this point did not meet the requirements of the case. Exceptions sustained.