Ficociello v. Spencer Gas Co. , 261 Mass. 77 ( 1927 )

Pierce, J.

This is an action of tort to recover damages for the loss by the plaintiff of shade trees and fruit trees, which the defendant admitted died of gas poisoning, and for the pollution of the plaintiff’s well by reason of the escape of gas from pipes alleged to be owned or controlled by the defendant.

The evidence warranted findings that the plaintiff has been the owner of the land upon which the trees and well were located since® 1913; that this land was situated on the southerly side of the main highway between Worcester and Springfield, which runs east and west through the East Brookfield flats; that prior to June 30, 1922, the Worcester County Gas Company owned the gas pipes laid in the highway three or four feet from the front line of the plaintiff’s premises; that from 1909, until June 30, 1922, the defendant Spencer Gas Company manufactured gas at its plant and delivered it for distribution by means of a meter and valve to and into the pipe lines owned by the Worcester County Gas Company; that in 1920, 1921, and 1922, there had been trouble with leakage of gas along the highway fronting and adjacent to the premises of the plaintiff; that trees were cut down in front of the plaintiff’s property in 1921, by the department of public works for the Commonwealth; that all the trees were dead from gas poisoning before being taken down; that in April and July 1922, the odor of gas was noticed in the tree pits; that the trees, twenty-six in number, were dead from gas poisoning a long time before they were ordered removed by the department of public works. There was further evidence that before June 30, 1922, reports from the territory, including the plaintiff’s property, of leaks in the pip,es were given to the defendant by the gas customers; that no provision had ever been made by the Worcester County Gas Company or by the defendant for the inspection of pipes, except upon complaint; that the first visit of the defendant’s supervisor of the manufacture and distribution of its gas to the plaintiff’s premises was on June 13, 1922; that the defendant had destroyed the records of complaints, inspections, repairs and leaks covering,the years 1921 and 1922, and at the trial had no records of such which it was asked to produce by the plaintiff.

On these facts the jury would have been warranted in finding that whoever distributed gas to customers or others through the pipe lines owned by the Worcester County Gas Company had not exercised that degree of reasonable care in relation thereto which is required by law in dealing with the subject matter of its business, having thought to the force and danger of the gaseous substance, and considering the probable consequences which would be likely to result to persons or property if proper diligence was not used in inspecting leaking pipes or in repairing leaks after they had been discovered. Smith v. Boston Gas Light Co. 129 Mass. 318. Salem v. Salem Gas Light Co. 241 Mass. 438, 441, 442. At the trial there was undisputed evidence that the defendant acquired title to the pipe lines of the Worcester County Gas Company on June 30, 1922; that thereafter there was no change in the method of distributing gas through the pipes,' that is to say, the gas was manufactured in the same way and was distributed in the same way after as before the sale. The reported evidence strongly, though not conclusively, supports the position of the defendant that after June 30, 1922, the escape of gas from pipes adjacent to the property of the plaintiff was trivial and caused no harm in addition to the harm which had come to the property of the plaintiff before that date.

It is the contention of the defendant that a verdict should have been directed in its favor, because it was not the owner of the pipes and did not distribute gas through the pipes before June 30, 1922. The evidence reported, however, would warrant the jury in finding that the defendant and not the Worcester County Gas Company used the pipes to .distribute gas to customers before June 30, 1922; and that as such user it was in control of the pipes under some arrangement with the Worcester County Gas Company, which, the jury could properly find, was, at the least, that of a lessee, from the not very clear testimony of the manager of the defendant when that testimony was considered in connection with the fact that it had destroyed evidence of complaints, inspections, repairs and leaks covering the years 1921 and 1922. Assuming that the jury found that the defendant itself was in control of the distribution of the gas manufactured by it while the gas was passing through the pipes owned by the Worcester County Gas Company to the customers of either corporation, it was bound to exercise the care which the law demands a distributor of gas shall observe, regardless of the title to the pipes which it made use of for that purpose. The motion for a directed verdict was denied rightly.

The remaining requests are predicated upon the assumption that the defendant was not guilty of actionable negligence in the distribution of gas through the pipes in the highway, if such distribution was before June 30, 1922; and they are sufficiently covered by what has been said in speaking to the motion for a directed verdict.

Exceptions overruled.