Morrow v. Otis

Sandeeson, J. This is an action of tort to recover damages for injuries caused by escaping gas. There are three counts, based upon negligence of the defendants, in permitting gas and heating appliances to become defective, to be and remain out of repair, and in knowingly letting to the plaintiff a room wherein the gas fixtures and appliances were defective. ■ The plaintiff was the only witness called. She hired of the defendants a room, lighted and heated by gas, in a building owned by them, for which she paid rent in advance. When the agreement was made, the plaintiff noticed that the gas fixture in the room was an old one, and asked whether it was all right. The defendant Mrs. Otis said, pointing to the fixture, “ this is a safety catch here. Perfectly all right ”; that a man who had “ fixed the gas fixture ” says “ it is all right. He ought to know.” The plaintiff occupied the room two nights. On the first she turned on the gas for lighting the room, but not that for heating, and there was no trouble from escaping gas. The next night she turned on the gas for heating at about eight o’clock, and left it on about three hours when she turned it off at the safety catch near the wall, which Mrs. Otis had told her turned the gas off from the stove. The plaintiff thought there was no other shutoff, but did not know. After turning off the gas, she wPnt to bed and upon awaking in the morning was not feeling well [67] and fell when she tried to get up. Mrs. Spear, an occupant of the next room, who heard her fall, came with Mrs. Otis to the plaintiff’s room and said that upon opening her (Mrs. Spear’s) door, the hall was full of gas. Mrs. Spear then pointed to the gas jet in the plaintiff’s room and said “ This is where the trouble is ” but she did nothing to it. The night after the accident Mrs. Otis said to the plaintiff that there had been a man there to “ fix . . . [the gas fixture] and he said it was all right ” ; also, that the room “ won’t be occupied again until it is all right.” A few days later the plaintiff visited the room in company with Mrs. Otis and said “ Well, you have had the gas fixture all fixed up new now,” to which she received no reply. At the close of the plaintiff’s case the trial judge, upon motion, directed the jury to return a verdict for the defendants. The plaintiff’s exception to this order presents the only question for our consideration. No one testified that the gas fixture was defective or out of repair either before or after the plaintiff was made ill, but if it be assumed that upon the evidence the jury would have been warranted in finding that the injuries to the plaintiff were caused by the escape of gas from a defective fixture in her room — a question which we do not decide — there is not sufficient evidence to justify a finding of negligence on the part of the defendants. There was no escape of gas on the first night of the plaintiff’s occupancy. Why the gas escaped on the second night did not appear. Hill v. Iver Johnson Sporting Goods Co. 188 Mass. 75. The only evidence tending to show any change in the condition of the appliance after the first night was that which related to the plaintiff’s use of the gas by turning it on and off. The unexplained escape of gas from a fixture owned by the defendants is of itself no evidence of their negligence. Murphy v. Boston Elevated Railway, 229 Mass. 38. If there were a defect, its nature and the time when it came into existence were matters of conjecture and it did not appear that the most careful inspection on the part of the defendants would have disclosed it. If the silence of Mrs. Otis when the plaintiff spoke to her a few days after the plaintiff was made [68] ill would support a finding that a new gas jet had been put in after the accident, this fact would not justify the inference that a defective condition for which the defendants were responsible had existed before that time. It is not an admission of negligence. Menard v. Boston & Maine Railroad, 150 Mass. 386. Shinners v. Proprietors of Locks & Canals, 154 Mass. 168. Albright v. Sherer, 223 Mass. 39. The plaintiff cannot recover on the ground that Mrs. Otis stated to her in substance that the gas fixture was all right, when she knew or should have known that it was defective. The evidence is not sufficient to prove that when the room was let the defendants knew, or in the exercise of reasonable care should have known, that the fixture was defective or that any repairs were needed on it. The facts in this case distinguish it from cases like Cutter v. Hamlen, 147 Mass. 471, and Clogston v. Martin, 182 Mass. 469, which were actions for deceit in connection with the letting of houses. Exceptions overruled.