On this

gence must be shown to warrant a recovery.65 principle, the liability of an optician for a negligent departure from the terms of a prescription in the grinding of eye-glasses, whereby the purchaser's eyes are injured, is not based upon an implied breach of warranty, but on negligence."

A charge that defendant is liable without regard to negligence or legal fault is error (Brown v. Marshall, 47 Mich. 576, 11 N. W. 392; Gwynn v. Duffield, 66 Iowa, 708; s. c., 61 Id. 64; Beckwith v. Oatman, 43 Hun, 265; Allan v. State S. S. Co., 132 N.

Y. 91, 30 N. E. 482; Howes v. Rose, 13 Ind. App. 674, 42 N. E. 303). The text quoted and approved in Walton v. Booth, 34 La. Ann. 913. See cases cited in note 57b, supra.

Price v. Ga Nun, 11 N. Y. Misc. 74, 32 N. Y. Supp. 801.

CHAPTER XXXV.

GAS AND ELECTRICAL WORKS.

692. Duty in construction and § 696. Defence of contributory neg

693. Duty of inspection and re- 697. Negligence of company's ser

694.

pair.

[Consolidated with § 693.] 695. Contributory act of stranger.

698.

vants.
Electrical works.
699a. Contributory negligence.

It is

§ 692. Duty in construction and manufacture. the duty of a gas company to build all its works, lay its pipes, and carry on its business, in such manner as to avoid injury to the property of others by the escape of gas, or of any of the materials employed in making it, or of the washings and refuse. To this end, the company is bound to use a degree of care and skill proportioned to the danger reasonably to be anticipated, which it is its duty to avoid.1 It is the duty of the manufacturer to dis

'Hipkins v. Birmingham Gas Co., (Mississinewa Min. Co. v. Patton, 6 Hurlst. & N. 250. See Pottstown 129 Ind. 472, 28 N. E. 1113; AlexanGas Co. v. Murphy, 39 Pa. St. 257. dria, etc. Co. v. Irish, 16 Ind. App. Gas works are to be placed in the 534, 44 N. E. 680 (1896); Barrisman class of private erections which are v. Marion Oil Co., 45 W. Va. 634, not within the ordinary and usual 32 S. E. 327, 44 L. R. A. 92 (1898); purposes to which real estate is ap- Dow v. Winnipesankee, etc. Co., 68 plied, and whenever they create a N. H. 312, 41 Atl. 288, 76 Am. St. special injury, they are to be re- Rep. 173, 42 L. R. A. 569 (1898); garded as a private nuisance for Indiana, etc. Co. v. McMath, 24 Ind. which an action will lie" (Carhart App. 124, 57 N. E. 593 (1900); v. Auburn Gas Co., 22 Barb. 297, Armbruster v. Auburn Gaslight Co., 312). A gas company must use rea- 162 N. Y. 655, 57 N. E. 1103, aff'g sonable and ordinary care in laying 18 App. Div. 447, 46 N. Y. Supp. its pipes and mains so as to prevent 158 (1900); Marshall Window Glass escape of gas in dangerous quantities Co. v. Cameron Oil, etc. Co., 59 S. E. in view of its occupancy of streets (W. Va.) 959 (1907); Thompson v. for its special and extraordinary use Cambridge Gaslight Co., 201 Mass. in conducting an article in a high 77, 87 N. E. 486 (1909); United degree imflammable and explosive" States Natural Gas Co. v. Hicks, 134

[1803]

1804

GAS AND ELECTRICAL WORKS.

[$ 692 pose of the refuse and foul water coming from his works, so as to prevent their entering upon adjacent land, and for failure to do so, whereby an injury is done, he is liable as for negligence (of which, the escape of such noxious matter is sufficient proof), or for maintaining a nuisance, and this, without proof of negligence on his part. The pipes, when laid, should be sufficiently strong and securely jointed to stand ordinary frosts and to bear all pressure that can be reasonably anticipated from the ordinary use of the streets under which they are placed, as well as the degree of pressure of any gas allowed to flow through them.

Ky. L. Rep. 12, 119 S. W. 166, 23 I.. R. A. (N. S.) 249 (1909); Hashman v. Wyndotte Gas Co., 83 Kans. 328, 111 Pac. 468 (1910); Pulaski Gaslight Co. v. McClintock, 134 S. W. (Ark.). 1189 (1911); Consolidated Gas, etc. Co. v. Connor, 78 Atl. (Md.) 725 (1910).

4

When licensed to use a

quence of the construction of the sewer, and defendant knew, or ought to have known, of its construction, it was its duty to guard against any damage likely to ensue, and it was for the jury to determine whether defendant ought to have known thereof within a shorter time

2 Pensacola Gas Co. v. Pebley, 25 than elapsed between the commenceFla. 381, 5 So. 593.

The rule of liability, irrespective of negligence, for keeping intrinsically dangerous things, is stated and illustrated in § 17, ante, and §§ 701a, 728, post. Payne et al. v. Providence Gas Co., 77 Atl. (R. I.) 145 (1910).

'See Emerson v. Lowell Gas Co., 3 Allen, 410; Holly v. Boston Gas Co., 8 Gray, 123.

Brown v. N. Y. Gas Co., Anth. N. P. 351. But it is not negligence not to anticipate an unreasonable and extraordinary use of the streets, and not to strengthen the pipes accordingly (Ib.). In Koelsch v. Philadelphia Co., 152 Pa. St. 355, 25 Atl. 522, defendant accounted for the separation of the joints of the main by the recent construction of a sewer in close proximity. Held, that if such injury was the natural conse

ment of work on the sewer and the discovery of the leak.

6

Defendant laid a three-inch pipe through which it transported natural gas at the dangerous pressure of 300 pounds to the square inch, the pipe being poorly pointed and permitting gas to escape and explode. Held, negligence sufficiently shown (Lebanon Light, etc. Co. v. Leap, 139 Ind. 443, 39 N. E. 57). Under an Ohio statute (Rev. Stat., § 3561a), parties transporting natural gas in pipes are absolutely liable for damages from explosions, etc., irrespective of negligence (Gas Fuel Co. v. Andrews, 50 Ohio St. 695, 35 N. E. 1059). Where liable to crack as the result of cold weather, the mains must be laid at a depth that will protect them, and must be kept in repair (Thompson v. Cambridge Gaslight Co., supra.

highway or public place for laying pipes or placing other apparatus, the company is bound, like other licensees, to provide against their being or becoming, by lack of proper supervision, a cause of injury to travelers.'

§ 693. Duty of inspection and repair. - A gas company is liable for injuries caused by gas escaping from a defective pipe, meter or other apparatus, owned or controlled by it, if it knew or ought to have known of the defect. Notice of such defects will always be implied

9

on proof that the company had not adopted and maintained a regular system of inspection for the prompt detection and remedy of defects in its apparatus, caused by natural decay, action of frost or otherwise; 10 and although such a system had been adopted, and an inspection made in a particular case, the company is nevertheless liable for failure to discover a defect if it was one which men of ordinary skill in the business would have

"Consolidated, etc. Gas Co. v. Getty, 99 Md. 683, 54 Atl. 660 (1903); Wichita Gas, etc. Co. v. Wright, 9 Kans. App. 730, 59 Pac. 1085 (1900); Siebrecht v. East River Gas Co., 21 App. Div. 110, 47 N. Y. Supp. 262; Consumers' Gas Co. v. Corbaley, 14 Ind. App. 549, 43 N. E. 237 (1896); Baltimore, etc. Gas Co. v. Croker, 82 Md. 113, 33 Atl. 423, 31 L. R. A. 785 (1895); Hartman v. Citizens', etc. Gas Co., 210 Pa. St. 19, 59 Atl. 315 (1904).

10

held liable must have had notice of sight and superintendence, and to be the defect and an opportunity to prepared with a sufficient force, remedy it (Mowers v. Municipal Gas ready to be put in action, and fully Co., 142 App. Div. 169, 126 N. Y. competent to supply and furnish a Supp. 1033 (1911). prompt remedy for all such accidents, defects and interruptions in the conduct of their affairs, as from experience and the character and peculiarity of their works there was any reasonable ground to anticipate might occur. To know, therefore, whether due diligence has been exerted in any particular instance, it is necessary to know what is their general system, and what are the means of relief at their command and within their control" (Holly v. Boston Gas Co., 8 Gray, 123). S. P., Powers v. Boston Gas Co., 158 Mass. 257, 33 N. E. 523; Kiebele v. Philadelphia, 105 Pa. St. 41; Evans v. Keystone Gas Co., 148 N. Y. 112, 42 N. E. 513; aff'g 72 Hun, 503, 25 N. Y. Supp. 191. In the last case, held, that proof that trees and grass in the neighborhood of a gas main decayed and died from the time it was laid until it was recalked and that from that time there was a healthy growth was sufficient to justify a finding that the damage to the trees was due to a leakage of gas. And see Armbruster v. Auburn Gas Co., 18 N. Y. App. Div. 447, 46 N. Y. Supp. 158 [gas percolated through ground into plaintiff's greenhouse and injured plants].

Its pipes should not only be of such material and workmanship and laid in the ground with such skill and care as to provide against the escape of gas therefrom when new, but such system of inspection should be maintained as will insure reason able promptness in the detection of all leaks from deterioration of the material of the pipes, or from any other cause within the circumspection of men of ordinary skill in business " (Koelsch v. Philadelphia Co., supra). "All that a gas company can reasonably be required to do is to afford ample facilities to all parties interested to make communications to them, to institute and maintain an efficient system of over