McKenna v. Bridgewater Gas Co.

Opinion by

Mr. Justice Dean,

The defendant and the Citizens’ Natural Gas Company both maintained gas lines in the borough of New Brighton, Beaver county. On September 27, 1897, an employee of the Citizens’ company, one Miller, opened the gate of what is known as the by-pass of the Bridgewater company and thus connected its low and high pressure lines, leaving the gas uncontrolled by the regulator. This line introduced gas into the dwelling of Mr. Mc-Kenna, the plaintiff. In consequence of this opening of the gate the pressure rose in the low pressure line of defendant with which Mr. McKenna’s house was connected, and an explosion in the house followed, which blew it to pieces and so severely burned and otherwise injured plaintiff’s wife that she soon after died. Plaintiff sued the Bridgewater company for damages, alleging this company was guilty of negligence in leaving the bypass in such an exposed condition that any one had access to and could so manipulate it as to cause injury to the company’s customers ; and further that defendant’s system of inspection was loose and inefficient. The defendant denied any responsibility for the act of Miller who was not its servant, and was to them unknown. Also denied any negligence in any of the particulars charged.

The court submitted the evidence bearing on the question of negligence to the jury, instructing them that the burden was on defendant to rebut the inference of negligence fairly derivable from the circumstances. There was a verdict for plaintiff in the sum of $15,000. Motion for new trial was made which after hearing was refused and judgment entered. Defendant now appeals, assigning for error the refusal of the court to peremptorily instruct the jury to render a verdict for defendant.

We do not see how under any view of this evidence the judgment can be sustained. Miller was superintendent of the Citizens’ gas company. He testified that the people along Fourth avenue on their line were urgently demanding a supply of gas, and he went out along the Citizens’ company’s old line to ascertain if they could be supplied from that source. He had no knowledge of his own which would enable him to locate it with certainty, so asked one Albright, a former superintendent, to aid him; Albright, standing at Sixth avenue and Thirteenth street, pointed to the line where was located a box with a stop cock fitted to the Phoenix Glass House; from this point Miller followed what he supposed was the Citizens’ line until he came to a box at the corner of Fourth and Thirteenth streets; this box inclosed a by-pass, and stood about twenty feet from the regulator; he had with him what is called a curb key, about half an inch in diameter and four feet long; with this he pried open the box, gob into it, and opened the gate separating the low .from the high pressure; the disaster to plaintiff followed. Instead of manipulating his own line, that of the Citizens’, Miller had blundered on to the Bridgewater line, where he ignorantly pried off the plank which protected their gate, and without inquiry recklessly put the gas in such a dangerous state of transmission, that it exploded and blew up plaintiff’s house. It is not pretended that the defendant company had any control of or even knew Miller; he was an intruder on their easement, a trespasser in opening their box. Unless defendant failed in some duty it owed to McKenna as a patron, it cannot be answerable to him for negligence. It undoubtedly owed to him the duty of care in the construction of the line through which the gas was conveyed to his house. It was bound to adopt and use those appliances by which it could regulate and keep under control such a volatile and explosive substance, and inclose or protect these appliances so as to render them reasonably secure and ready for use; all this, from the undisputed evidence, defendant did. It was not bound to maintain a line of sentries the length of its route to keep off trespassers; nor was it bound by personal inspection at frequent intervals during the day to ascertain whether some other gas company had mistaken defendant’s line for its own, and tampered with its valves. In what respect then did it fail in duty ? Where is negligence to be imputed to it? The learned judge of the court below in his general charge speaks as follows: “It appears, and from the uncontradicted evidence, that the gas which caused the excessive pressure in the low pressure mains came through the by-pass, and if it had not been for the act or interference of Charles Miller, the superintendent of the Citizens’ Natural Gas Company, with the valve upon this by-pass, we are safe in saying in this case that the accident would not have occurred. ... As we have said before, without the turning of this by-pass no accident would have occurred—that this accident would not have occurred; and that to this cause is directly attributable the deplorable condition of things on that night, and its dreadful results.”

If those remarks be correct, as they undoubtedly are, then the damage was caused by the unauthorized act of Miller. But the court submitted the case to the jury on two theories, either or both of which they might adopt. First, was the box so negligently constructed that it was not secure from intrusion ? We answer it was planked; Miller raised the lid by prying it up with a lever four feet long; that is, the curb key; with the same key he manipulated the gate; he was an expert, for that was his business, and he had the expert’s tools. An expert burglar, with the tools of his trade, can enter a house which the ordinary man would find effectually barred against him. Nothing would have been complete protection of this box except a construction as strong as a jail. No such exacting duty was imposed on defendant by any rule of law, nor was there any evidence which warranted the jury in so finding.

Second, it was left to the jury to find, whether defendant enforced, such rigid rules of inspection along its lines, as would relieve it from the imputation of negligence. That it enforced such rules, and that they were observed by its employees with reasonable fidelity, cannot be disputed; that in their observance the servants of the company failed to detect this intrusion soon afterward does not show want of care, but only that, with ordinary acuteness of perception, sharpened too by experience, they failed to see a most improbable thing, to wit: that the expert of another company had come on their line, had broken into the box and had turned the gate. These inspectors were not bound to assume that either a blunderer or a criminal having no right upon the premises would commit such an act; when nothing externally indicated that the box had been opened, or the gas tampered with, there was no negligence in hastily extending their examination to other parts of the line. If, then, as the learned judge says, without this unauthorized act of the intruder, Miller, the injury would not have occurred, why hunt or authorize the jury to hunt for some other cause, which bore no direct relation to the result? Here was the cause, standing out palpable and conspicuous; the court below so conceded; the jury ought to have so found. To say that if there had been an impenetrable box the injury would not have happened, or if there had been personal inspection of the box every hour it would not have happened, does not warrant an inference of negligence. If the valve had not been there it would not have occurred; if it had been inclosed in an impenetrable steel cage it would not have occurred; if defendant had not built its line at all it would not have occurred; but being built and connected with plaintiff’s house with the ordinary attachment for regulating the flow of gas, Miller, a wrongdoer, although not an intentional one, blew up the house. He was the direct, efficient, dominant cause of the injury, for whom defendant is in no way answerable, and the court ought to have said so to the jury.

The judgment is reversed and judgment is entered for defendant.