Nugent v. Boston Consolidated Gas Co.

Braley, J. The plaintiff’s intestate, a boy fourteen years of age, whose due care is not questioned, while standing in the street was blown into the branches of a nearby tree by an explosion of illuminating gas, where he clung or hung for a few minutes, and then dropped to the ground, either lifeless, or unconscious, and was pronounced dead by the medical examiner upon his arrival. The declaration imeach action is in two counts, one for conscious — 230 — suffering, and one for death under R. L. c. 171, § 2, as amended by St. 1907, c. 375, and, the jury having returned a verdict for the plaintiff on each count, the cases are here on the exceptions of the defendants. But as the contentions of the Boston Consolidated Gas Company relate solely to damages and to the allowance of interest on the verdict under the count for death, questions which are common to both cases, we shall first consider the Edison Electric Illuminating Company’s exceptions to the refusal of the presiding judge to direct a verdict for the company, and his denial of the rulings requested, and to certain portions of the instructions, and to the admission and exclusion of evidence. It appeared on abundant evidence that for a long time prior to the explosion a strong persistent odor of illuminating gas had been prevalent in the vicinity of the accident. The facts of the explosion, even if the cause of ignition never has been ascertained, and that this defendant owned and maintained in the vicinity cement or concrete conduits, some thirteen in number, with manholes, the covers of which were blown off, were uncontroverted. The jury could find that in one of these manholes gas had accumulated from a leak in a ruptured gas pipe directly under and in contact with the conduit, which by reason of its location and use, as fully described in the record, was so built as to extend diagonally across the gas pipes which were united at this point by a “four way connection” referred to throughout the trial as a “cross.” The plaintiff contends that the dangerous and unsafe condition of the gas pipe was caused by the improper construction and negligent maintenance of the conduit. It had been put in some six or seven years before the accident, and after its construction the street had been resurfaced and paved and car tracks installed, over which cars were operated. The jury could find that the conduit, weighing about two and one quarter tons, had been so built as to rest directly over and within six inches of the gas pipes, under which earth had been more or less excavated, and that, instead of being a solid mass of bonding, the concrete had been moulded in layers leaving seams. It also could be found that a joist had been placed under the middle of the cross by the Edison company and that the conduit as it slowly settled transmitted the load of passing street cars, while its continuous vibration, especially- when the ground was frozen, caused an unequal subsidence, and if the — 231 — conduit moved laterally the pipes below would vibrate correspondingly. If the conduit sank unevenly, the unequal strain on the pipes would tend to produce a rupture, and, the pipes being supported in the middle by the cross, any weight on either side of the point would act as a lever prying them apart. And as the jury further could say a trench had been dug by this defendant under the cross, and insufficiently back filled, “it would have less supporting power and would settle more readily under a load, . . . than if the conduit had been separated a little from the gas pipe; it would have been better construction but it would not be safe then because the intervening space filled with earth would not distribute the load sufficiently to arch over the pipe which would be the purpose of earth covering — to give it a rigid effect,” and that about “twelve inches was usually considered a safe distance to have between pipes and a conduit such as the one in question; that it depended upon the character of the soil,” and that “six inches would be getting pretty dangerous.” A finding that gas escaped from a break in the pipe caused in the manner just referred to, and that it was the only reasonable and satisfactory explanation of the leakage, and consequent explosion, was warranted. Koplan v. Boston Gas Light Co. 177 Mass. 15. The defendant however urges, that, the work of building and placing the conduit having been performed by an independent contractor in accordance with plans and specifications approved by the wire department of the city, it is absolved, from all liability. But even if permitted or licensed for its own use and benefit to build and maintain the conduit which otherwise would have been a nuisance, it could be found on the evidence that the defendant knew the street was being concurrently used by the public to which it owed the duty of due care not only in construction but of maintenance. Gorham v. Gross, 125 Mass. 232. Igo v. Cambridge, 208 Mass. 571, 576. And this is true even if the location and the méthod of building had been approved by the commission. Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341. By the terms of the contract the contractor was to take its instructions from “the Supt. of the St. Engineering Dept, of the Company acting either directly or through his properly authorized agents; such agents acting within the scope of the particular duties intrusted to them.” The superintendent also was the — 232 — referee to decide all disputes between the contractor and the company, relating to the mode and details of construction and of installation of the conduit, and, by express reference, underground obstructions and the supporting of gas pipes were entirely under his .supervision and control. It is settled that where as in the present case the contractor does the work in the right of the employer who retains control, and where its nature and location is such that if faultily performed the safety and welfare of persons lawfully in the street will be put in jeopardy, and injury results, the employer under whose instrumentality the work has been done is responsible. Woodman v. Metropolitan Railroad, 149 Mass. 335, 340. Blessington v. Boston, 153 Mass. 409. Pye v. Faxon, 156 Mass. 471, 474. Flynn v. Butler, 189 Mass. 377, 388. Boucher v. New York, New Haven & Hartford Railroad, 196 Mass. 355, 359, 360, Garland v. Townsend, 217 Mass. 297, 300, 301. Hall v. Henry Thayer & Co. 225 Mass. 151, 154. The defendant, if through its negligence gas accumulated and remained in the manhole, is liable for the natural and probable consequences. The jury were to determine whether in the exercise of ordinary care it should have foreseen that, if gas escaped, it might be ignited by a natural cause or by some person whether in the employment of the gas company, or a traveller, even if such person or the company also might be liable for negligence. Feneff v. Boston & Maine Railroad, 196 Mass. 575. The plaintiff’s action against this defendant is on grounds entirely independent of her action against the gas company, and the admissions of that company, or proof of its negligence, or unauthorized acts, or responsibility therefor to the intestate is not a defence. Koplan v. Boston Gas Light Co. 177 Mass. 15. The defendant, having placed its conduit in a public way, was bound thereafter to use due care in maintenance not only under the conditions of travel existing when the conduit was built but coming into existence afterwards, whether by resurfacing or paving of the street, or the establishment of car tracks. Derry v. Flitner, 118 Mass. 131, 134. And the instructions that “a company which contracts to have work done, if that work is of a nature which will cause danger to outside persons, persons who are not parties to the contract, then it is the duty of the party, not the constructing party, but the other party, to use reasonable care — 233 — to see that measures are taken which will not endanger the safety of third persons, the' public,” and “after it is completed, there should be reasonable care used in the maintenance of it, . . . reasonable precautions to see that, if it is a source of danger there, that third parties, outside parties, shall not receive harm or injury. It is a question of reasonable care,” accurately and clearly stated the law. The jury doubtless could find that in the construction of the conduit there were deviations from the plan as approved. But the judge correctly said that deviations would not be evidence of negligence unless they were of a material and substantial character actually contributing to the escape of gas. Grier v. Guarino, 214 Mass. 411. The violation of a statute or ordinance is only evidence of negligence for the jury. It is not conclusive. Finnegan v. Winslow Skate Manuf. Co. 189 Mass. 580. It being plain that, having been laid and maintained in the street without the permission of the city, the gas pipes constituted a nuisance, the defendant urges that the negligence of the gas company prevents recovery, even if its own negligence may have contributed to the injury and death of the intestate. The defendants however could be found to be concurrent tortfeasors, and under our decisions could be sued jointly or severally for conscious suffering. Feneff v. Boston & Maine Railroad, 196 Mass. 575, 580, 581. Oulighan v. Butler, 189 Mass. 287, 293. “If each contributes to the wrong . . . the proximate cause is the wrongful act in which they concurrently participate, whether the result causes instantaneous death, or injuries which the sufferer survives.” Brown v. Thayer, 212 Mass. 392, 397. But by reason of the statute the penalty can only be assessed in separate actions. Brown v. Thayer, 212 Mass. 392, 399. The case of Black v. New York, New Haven & Hartford Railroad, 193 Mass. 448, is not applicable to any question raised by the record for reasons pointed out in the recent case of Bilodeau v. Fitchburg & Leominster Street Railway, 236 Mass. 526. The defendant cannot escape liability for its own negligence because of the negligence of a concurrent wrongdoer. Eaton v. Boston & Lowell Railroad, 11 Allen, 500, 505. And the instructions in substance that even if the gas company was a trespasser the defendant was not excused from the consequences of its own negligence if proved to the satisfaction of — 234 — the jury, and the illustrations used by the judge were unexceptionable. Hogner v. Boston Elevated Railway, 198 Mass. 260. Leahy v. Standard Oil Co. of New York, 224 Mass. 352. Draper v. Cotting, 231 Mass. 51. The actions moreover are not between the defendants to determine which company is the primary wrongdoer, but between the plaintiff and the companies sued severally, and, if the rulings were correct upon the issues between the plaintiff and this defendant, it has no ground of complaint to the refusals of the judge to rule as to the liability of the gas company, or of rulings which it deemed too favorable to that company. “If both defendants contributed to the accident, the jury could not single out one as the person to blame.” Corey v. Havener, 182 Mass. 250, 252. Koplan v. Boston Gas Light Co. 177 Mass. 15, 28. The motion for a directed verdict was rightly refused. The first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, thirty-fourth, thirty-fifth, thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth, fortieth, forty-first, forty-second, forty-third, forty-fourth, forty-fifth, forty-sixth, forty-seventh, forty-eighth, forty-ninth, fiftieth, fifty-first, fifty-second, fifty-third, fifty-fourth, fifty-fifth, fifty-sixth, and fifty-seventh requests, in so far as they correctly state propositions of law were sufficiently covered by the instructions, and the instructions to which exceptions were taken when read with the context were adequate statements of the law applicable to the case. The evidence of Barker, a witness called by the plaintiff, to which the defendant excepted, while elicited in cross-examination by counsel for the gas company, is not shown to have been improperly admitted. His experience as the “claims” agent of the gas company, instructed “many years ago” to investigate and ascertain the cause of leaks in gas pipes for the purpose of making repairs, and that for nearly twenty-nine years whenever leaks were reported he made such investigations, and had investigated the cause of the explosion, and was at the manhole shortly after it occurred, and saw the employees of the gas company excavating, — 235 — and examined the cracks in the pipe underneath the conduit, and the construction of the conduit and its location, qualified him in the discretion of the presiding judge to testify, that the ties of the railway resting on six inches of frozen earth, all pressing upon the conduit, with the vibration caused by the passing cars would be sufficient to cause the break. Commonwealth v. Thompson, 159 Mass. 56, 58, 59. Commonwealth v. Adams, 160 Mass. 310. Childs v. O’Leary, 174 Mass. 111. Gomes v. New Bedford Cordage Co. 187 Mass. 124. Carroll v. Boston Elevated Railway, 200 Mass. 527. The testimony offered by the gas company that, whenever notice was received from the city that a street where gas mains were laid was to be resurfaced, its practice was “we bar over each and every joint, and if there should be any trace of gas an opening is made and the joint driven up,” was admissible as between it and the plaintiff on the question of the gas company’s negligence in failing to discover the leak after the street was resurfaced and paved. Cook v. Rider, 16 Pick. 186. Dorman v. Kane, 5 Allen, 38, 40. Commonwealth v. Duprey, 180 Mass. 523. Emery v. Boston Marine Ins. Co. 138 Mass. 398, 410. Powers v. Boston Gas Light Co. 158 Mass. 257, 260. The defendant, as we have said, seems to overlook the right of the gas company to meet as far as possible the plaintiff’s evidence of its negligence even if in so doing the Edison Company might be adversely affected. The Edison Company would be sufficiently protected by asking the judge to instruct the jury to restrict such evidence as if the gas company were the sole defendant. The evidence of McMahan, an inspector of the wire department, that the work of putting in the conduit was done under the direction of the engineering department of the Edison Company, was apparently admissible when first offered by the gas company. If later it appeared that, not having been present, his evidence was hearsay, the defendant should have moved to have it struck out. Morrison v. Holder, 214 Mass. 366, 369. The testimony of Gow, the plaintiff’s expert, that the conditions which he described and which the jury could find would “account for such a break and that in his opinion they did cause the break,” was admissible for reasons sufficiently stated, notwithstanding the defendant’s contention that, the work having been done by — 236 — an independent contractor with the approval of the public authorities, his evidence was irrelevant. The evidence of Hilton, admitted to be qualified to give an opinion, that the cause of the break was the “weight of the conduit on top of the cross, the loose ground under the cross, and the settling and vibration,” was properly admitted. It was competent on the issue of the defendant’s negligence. It also was immaterial whether the defendant’s property had been damaged by the explosion. Its own pecuniary loss could not mitigate either the damages or the penalty. The ruling limiting the evidence to proof that a very substantial damage had been done was,sufficiently favorable. The measure of recovery is the only remaining question. While for convenience the cases were tried together, the plaintiff had the right to pursue each defendant as if the trials had been separate and before different juries. The count for conscious suffering could be joined with the count for death in.the same action, although each defendant was liable only for its own negligence, or according to the degree of its own culpability without any regard whatever to the negligence or degree of culpability of the defendant in the other action. Bartley v. Boston & Northern Street Railway, 198 Mass. 163. Oulighan v. Butler, supra. The judge gave to the jury the proper rule by which compensation for conscious suffering could be recovered, and the basis on which the assessment should be made. He was not required to do more. It is the satisfaction of the judgment against a joint or concurrent tortfeasor, not the recovery of a verdict against him which bars an action against the other wrongdoer. Oulighan v. Butler, 189 Mass. 287, 293. Feneff v. Boston & Maine Railroad, 196 Mass. 575. Lovejoy v. Murray, 3 Wall. 1. The judge properly refused to give the request of the gas company, that “if the jury should find against both the Edison Electric Illuminating Company and the Boston Consolidated Gas Company on the counts in the plaintiff’s declaration for the death of the plaintiff’s intestate, the total amount awarded under these counts cannot exceed $10,000,” and the Edison Company’s twenty-ninth, thirtieth, thirty-first, thirty-second and thirty-third requests, that if verdicts were returned and went to judgment the — 237 — plaintiff would not be permitted to collect both judgments, and that the total of the penalties assessed could not “exceed the amount fixed by the statute, to wit: $10,000,” and that it was important the jury should be so instructed. The degree of culpability as previously stated was for the jury, and where two or more are found liable the sum of the verdicts may exceed the stated maximum. The jury were accurately told that they were “not obliged to limit the amount so that the aggregate of both should be $10,000 and no more.” Brown v. Thayer, 212 Mass. 392. The action however for death is given by statute. The Legislature has fixed the maximum penalty which when satisfied must be deemed the limit of recovery for the loss of the life in question. If in cases of conscious suffering against two or more defendants there is but one wrong to be compensated, so there is but one maximum penalty where death ensues, the satisfaction of which is all the statute permits. As was said in D’Almeida v. Boott Mills, and D’Almeida v. Boston & Maine Railroad, 209 Mass. 81, where the plaintiff recovered against each for the loss of life of the intestate, that while the plaintiff was entitled to maintain the actions against each or all who contributed to the death of the intestate there could be but one satisfaction in damages. We are not aware that this statement of law has been overturned in the prolonged litigation growing out of the judgments entered in those cases. See Boott Mills v. Boston & Maine Railroad, 218 Mass. 582; Boston & Maine Railroad v. D’Almeida, 221 Mass. 380; D’Almeida v. Boston & Maine Railroad, 224 Mass. 452. The jury in passing upon the degree of culpability in the cases at bar could not apportion the penalty between the defendants, or lessen or increase the ampunt in either case on any theory of equalization, although the plaintiff could collect only $10,000, if the verdicts, which are respectively for $8,000, and $10,000, went to judgment. The question of satisfaction of the judgments in whole or in part does not enter into nor bear upon the issue or degree of culpability, or the amount of the assessment, which were the only questions for their consideration. If the plaintiff endeavors to obtain more than $10,000, the judgment debtor aggrieved by the excessive levy has an ample remedy by injunctive relief. Brooks v. Twitchell, 182 Mass. 443. The plaintiff’s motions that interest from the date of the writ — 238 — be added to the amount of each verdict for death were rightly allowed. By St. 1913, c. 290, § 1, interest from the date of the writ is to be added to the amount of the verdict “for pecuniary damages” where death engues with or without conscious suffering. The words of the statute are to be taken in their ordinary sense. It is plain that interest follows upon the verdict, but forms no part of it. A verdict is first to be returned and recorded, and interest thereon is to be added by the clerk from the date of the writ to the date of the verdict, and this amount bears interest to the date of entering the judgment upon which execution issues. R. L. c. 177, § 8. G. L. c. 235, § 8. Jackson v. Brockton, 182 Mass. 26. In civil cases at common law judgment was entered on motion, Gardner v. Butler, 193 Mass. 96, 99, and under our early practice judgment was entered on motion during the term and the time of entry minuted, but when no day was minuted, then judgment was entered on the last day of the term on all cases ripe for judgment, and cases undetermined were continued. Herring v. Polley, 8 Mass. 113, 119. Blanchard v. Ferdinand, 132 Mass. 389. Since the abolition of terms the practice is regulated by the rules of the trial court, and a case which has been finally determined, automatically goes to judgment at the time named in the rules, even if no record is made on the docket. Pierce v. Lamper, 141 Mass. 20. Warner v. Pittsfield, 231 Mass. 138. R. L. c. 177, § 1. G. L. c. 235, § 1. But the entry of judgment, and the amount for which it shall be entered are judicial acts. The court had jurisdiction of the parties and of the procedure, and the judge could at any time before judgment order interest computed and added under the terms of the statute. Johnson v. Boudry, 116 Mass. 196. Young v. Winkley, 191 Mass. 570, 575. Cormier v. Brock, 212 Mass. 292, 295. Bassett v. Fidelity & Deposit Co. of Maryland, 184 Mass. 210 Mass. 216. The result is that having fully examined and considered all questions raised by the record, we are of opinion that the defendants severally have failed to point out any reversible error, and in each case the exceptions should be overruled. So ordered.