Triple-State Natural Gas & Oil Co. v. Wellman , 114 Ky. 79 ( 1902 )

Opinion of the court by

JUDGE HOBSON

— Reversing.

Appellant is 'engaged in the business of supplying natural gas to Ashland, Ky., Huntington, W. Va., Ironton, Ohio, and other cities in that vicinity. Its w/ells are in Martin county, Ivy., and it has a pipe line which passes through Louisa, Ky. At Louisa it. furnished the gas to the sawmill of L. D. Boggs. There was a pipe running from the main to the mill, and just inside of the mill was a meter. Between the meter and the faucet to be used in turning on the gas for the mill was a regulator, which reduced the pressure so that the gas did not pass into the meter with the full pressure that was on the main. Appellee, Well-man, had gone to the mill seeking work of Boggs. Just us Wellman was leaving the mill, Boggs went to turn on the gas. By oversight he turned the wrong cock, turning what was known as the “by pass,” which turned upon the meter the full pressure of the main, which was 120 pounds. The meter exploded, and a piece of the meter struck Well-man on (.he leg, breaking it, and causing him other painful injuries, for which he sued, and recovered judgment against the gas company for $2,000. The testimony on the trial took a wide range, but, without going' into it minutely, we are satisfied it shows no negligence on the part of the company, unless it is responsible for the negligence of Boggs, or was an insurer of its gas, and is responsible, at all events, if it failed to keep it confined. Counsel for the appellee, realizing this, has rested his case on these two grounds, and we deem it unnecessary to extendi the opinion by noticing other points on which evidence was introduced.

We do not think there is a reasonable doubt that the sole cause of the accident was Boggs’ turning the wrong cock. The cock at the by pass was found turned after the explosion. All was quiet until Boggs made the turn with a monkey wrench. Then a frying sound set up, which was immediately followed by the explosion. If it be true that the by-pass cock was already turned, and that Boggs turned only cock No. 1, admitting the gas to the meter, still the company would not be answerable for the explosion, unless it is responsible for the negligence of Boggs, because he had charge of the premises and of the turning on of the gas, and it was incumbent on him to see that all was right before turning it on. The case of Rylands v. Fletcher, L. R. 3 H. L., 330, is cited to the proposition that a party collecting or having any dangerous substance on his premises is responsible at all events it' it escapes and injures, another; but. that ease has been very much modified by the ■later English cases, -and is generally disapproved in this; country. In the subsequent case of Box v. Jubb, 4 Exch. Div. 76, the defendants had a reservoir, which they used in operating their mill. The reservoir overflowed, and damaged the lands of the plaintiff by reason of al flood of water coming down from a reservoir, the property of a third person, at a considerable distance from the defendants’ reservoir. The defendants were held not responsible. This case and Nichols v. Marsland, L. R. 10 Exch., 255, lay dowm the rule that, if the person who has collected the water has done all that reasonable care and skill can do, he is not liable for damage by acts over which he has no control, and that distinction must be drawn between the keeping of a tiger or other dangerous wild beasts, which get loose accidentally or by the fault of others, and a reasonable use of property in a way beneficial to the community. In Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623, a steam boiler exploded from a secret defect, the fault of the boiler maker. It was held that the owner, who had used due care, was not responsible to an adjoining proprietor, whose buildings were damaged by the explosion. See, also, Gas Co. v. Kaufman (20 R. 1069), 105 Ky., 131 (48 S. W. 434). In Flint v. Gaslight. Co., 3 Allen, 343; Id., 9 Allen, 552, a gas-fitter. who was putting the pipes and fixtures in a house, turned on the gas before one of the pipes was closed with the proper fixture. By reason of this an explosion occurred. The gas fitter bad been in the employment of the company, but had left it. It was the duty of the company to turn on the gas, and there were circumstances from which it might be inferred that it gave the gas fitter permission to turn the gas on -when he got ready. It was held that from this fact an agency to act for the company was not to be presumed; and that the defendant was not liable for the act of the gas fitter merely from the fact that it permitted him to turn the gas on. In Schmeer v. Gaslight Co., 147 N. Y., 529, 42 N. E. 202, 30 L. R. A. 033, the gas was turned on from the street when the piping in the upper hallways had' not been properly attended to. The gas escaped, and caused an explosion. The gas in this case was turned in by a gas fitter, who had completed his contract on the lower floor, and did not know of the condition of the pipes above. It wras held that there was no liability on the part of the company, unless it was itself negligent in the premises. The doctrine of these cases is approved in Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372; Blenkiron v. Gas Consumers Co., 2 Fost. & F. 437; 2 Shear. & R. Neg., sec. 728; 1 Thomp. Neg., secs. 706, 719; note to Fuel Co. v. Andrews (Ohio), 29 L. R. A., 337 (s. c. 35 N. E. 1059); Barrickman v. Oil Co. (W. Va.), 32 S. E. 327, 44 L. R. A. 92, and cases cited. The authorities lay down the rule, as gas is a useful article, almost indispensable in modern life under many circumstances, the manufacture and sale of it is not an illegal act; and that the company in supplying this necessity to its customers is bound only to exercise such care and skill in its management as the dangerous character of .the substance and the attending circumstances demand of a person of ordinary prudence. The case of Thomas’ Adm’r v. Gas Co. (21 R., 1690), 56 S. W., 153, was not intended to lay down any other rule. That case is rested upon the ground that those using-such a death-dealing force as electricity must use the utmost care to avoid injury to those who are required to come near it. The injury in that case occurred on a city street, where for days a live wire had been permitted to hang, imperiling life. The safety of the travel•ing public upon the streets demands that he who sends along the streets of a city such a deady thing as a strong ■current of electricity should uotf be acquitted of 3'esponsi-bility by a contract with an insolvent person to deliver the electricity to him at the factory. The case here, though, is entirely different. The gas was properly confined in the main. It did not get out of the main by any fault of the company. It escaped from the main by the fault of the customer, Boggs, in improperly turning it on. This was on his own premises; and, while the meter was the property of the company, it was in the possession of Boggs, and it was placed there for his use. He was not the agent of the company in turning it on. He turned it on for himself in the execution of his own purposes. Title company was in no wise responsible for his acts, and while Boggs might be responsible to ax>pelloo, there isi no reason for holding appellant liable. Bartlett v. Gaslight Co., 117 Mass. 533, 19 Am. Rep. 421.

The verdict is palpably against the evidence. The court should have peremptorily instructed the jury to find for the defendant at the conclusion of the testimony.