CARMODY v. BOSTON GAS LIGHT CO.
Supreme Judicial Court, Massachusetts, January 2, 1895.
Reported in 162 Massachusetts Reports, 539.
Four actions for damages occasioned to the respective plaintiffs by the escape of gas were tried together.
Plaintiffs’ evidence tended to show that gas escaped into plaintiffs’ apartments from defendant’s pipes in the street; that plaintiffs inhaled the gas while asleep; and that the escape was due to the defective condition of the pipe.
Defendant’s evidence tended to prove that the defect in the pipe and the consequent escape of gas was due to acts of third persons of which the defendant had no notice, and not to any negligence of the defendant.
The plaintiffs requested the judge to rule that there was evidence enough of want of proper care on the part of the defendant to make it responsible, on the ground that it was bound to conduct its gas in a proper manner; and that the fact that the gas escaped was prima facie evidence of some neglect on the part of the defendant.
The judge declined so to rule, and instructed the jury as follows:
“The mere fact that a pipe broke and the gas escaped is not of itself sufficient to establish the liability of the company. It is evidence for you to consider upon the question of neglect; but there is other evidence bearing upon this question of neglect, and so it becomes a matter for you to determine, in view of all the evidence bearing upon the question, the burden being upon the plaintiffs to satisfy you, as a result of all the evidence, that there was in fact a neglect by the defendant, through which, and by means of which, this gas escaped.”
Upon the counsel for the plaintiffs remarking, “Your honor has not given the requests I asked for, and so I will except to that,” the judge replied as follows: “Well, you asked me to say that the fact that the gas escaped is prima facie evidence of some neglect on the part of the defendant. I do not choose to use that expression ‘prima facie evidence,’ unless the defendant consents to it. I have already told the jury that it was evidence of neglect, or of negligence, on the defendant’s part, and evidence the force of which it was for them to determine in connection with any other evidence in the case bearing upon the same subject.”
The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.[[102]]