Sharkey v. Portland Gas Co.

Mr. Justice Burnett delivered the opinion of the court. 1. It is within the discretion of the court to allow a pleading to be amended during the trial: Section 102, L. O. L. We cannot say that the court abused its discretion in refusing the change desired, and hence the plaintiffs can take nothing here by virtue of that assignment of error. The testimony on behalf of the plaintiffs strongly tended to show that the trees in question began to show signs of dying early in the month of July, when the leaves began to turn yellow and two of the trees actually died soon afterward. About this time, the plaintiffs, being apprehensive that the sickly appearance of the trees was caused by gas, dug down into the parking near them and became convinced that gas was escaping. They notified the company to that ef [330] feet. The defendant then sent men, who drilled holes in the pavement from which gas escaped in sufficient quantity to be lighted by boys playing with matches. The company then excavated over the main and found that it had been broken, making a vent for the gas. Some of the testimony tends to attribute the break to the fact that a water-main had been laid across the gas-main by the city authorities, and that the refilling of the excavation caused a pressure against the gas-main, which it could not withstand, resulting in the breach from which the gas escaped. 2. Illuminating gas is a dangerous thing when it eludes control, and it is incumbent upon those who deal in it as an article of merchandise to use care commensurate with its harmful nature. Of course the diligence must be such as an ordinarly prudent person would exercise under like circumstances in managing such an article. In brief, the care must be proportionate to the danger to be reasonably apprehended from the agency under consideration. It is plain that a greater degree of absolute care should be exercised in such circumstances than in conducting a millinery-store or carpenter-shop. In either case, however, the care must be proportionate to the risk incurred. It is said in Koelsch v. Philadelphia Co., 152 Pa. 355, 363 (25 Atl. 522, 524, 34 Am. St. Rep. 653, 18 L. R. A. 759): “The escape of gas from the defendant’s main was, in the absence of any exculpatory explanation, some evidence of neglect * * and when to this was added the testimony, already quoted, of one of the plaintiff’s witnesses in respect to the appearance of the aperture through which it escaped, prima facie case was made out against the defendant.” In that case the defendant attributed the escape of gas to the separation of the joints of the pipe, due to [331] the building of an adjacent sewer. On that point the court said: “If such injury to a gas-main be a natural and probable consequence of the construction of a sewer in close proximity to it, and the defendant had knowledge, or ought to have had knowledge, of the construction of this particular sewer, it was its duty to efficiently guard against the damage that was likely to be sustained. * * It could not shift the responsibility upon the municipality or its contractor * * and it was for the jury to determine whether, from the notoriety attending the construction of a sewer, a gas company having a proper system of inspection would, or ought to, have knowledge within a shorter time than elapsed between the commencement of work upon the sewer in question and the discovery of the leak.” It is like the doctrine of Boyd v. Portland Electric Co., 40 Or. 126 (66 Pac. 576, 57 L. R. A. 619), to this effect that: “In actions against electric companies for injuries received from contact with live wires in public ways proof of the breaking of the wires and of the happening of the accident makes a prima facie ease of negligence. ’ ’ See, also, Gould v. Winona Gas Co., 100 Minn. 258 (111 N. W. 254, 10 L. R. A. (N. S.) 889). In other words, considering the inherently dangerous nature of illuminating gas and the duty of the defendant to control it, an instance of res ipsa loquitur occurs whenever the gas escapes to the injury of persons or property. 3. It is contended, however, by the defendant that this is a rule of evidence rather than of pleading, and that the plaintiffs should state that the escape of the gas was due to the negligence of the defendant. In our judgment, however, the pleading is sufficient in [332] that respect. It would not he enough merely to say that the defendant was guilty of negligence. That is a mere conclusion of law. The complaint must state facts from which the court will be able to draw the conclusion of negligence. Having stated a sufficient omission of duty on the part of the defendant it is not necessary that the pleader should, so to speak, put a label upon the complaint and say in so many words: These allegations mean an imputation of negligence. If the facts alleged in the complaint in this action are proved as laid, a prima facie conclusion of negligence would he imputed to the defendant as a matter of law. 4. Within the meaning of the precedents, a case was made by the plaintiffs sufficient to go to the jury when they showed that the gas escaped and that, in consequence thereof, the trees were killed. Negligence is a question of fact to be determined by the jury: Palmer v. Portland Ry., L. & P. Co., 56 Or. 262 (108 Pac. 211). There being some evidence to sustain the allegations of the complaint, and that pleading being sufficient in averment as a matter of law, it was error to withhold the case from the jury. The judgment is reversed and the cause remanded for further proceedings. Reversed. Rehearing Denied. Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.