Bernier v. Pittsfield Coal Gas Co.

Sanderson, J.

In these actions, tried together, the plaintiffs are husband and wife; each suing to recover for injuries received from escaping gas, and the husband, in addition, is suing for expenses incurred because of his wife’s injuries. The harm suffered by the plaintiffs was caused by the inhalation of gas escaping from a break in the defendant’s pipe and percolating into the plaintiffs’ home from the street. It was stipulated that the pipe was laid three and one half feet below the surface; that at the time of the injuries the weather was extremely cold and the frost had penetrated into the ground “at a considerable depth” so that the gas pipe contracted, causing the leak.

*190 There was evidence tending to show that in Pittsfield, where the alleged torts were committed, frost had penetrated in the streets to a depth of over six feet, and that the ordinary depth in the winter would be about four and one half to five feet. During the week preceding the leak the temperature ranged from five degrees below zero to twenty-nine above; and the minimum temperature on the day of the injuries was nine degrees above.

The cases come up on exceptions to the refusal by the trial judge to give three of the defendant’s requests for rulings. The first and second of these were framed to raise a question on the whole evidence. Rule 44 of the Superior Court (1923) provides: “The question whether the court should order a verdict must be raised by a motion. Such question shall not be raised by a request for instructions to the jury.” The exception to the refusal to grant these two requests is overruled. See Carp v. Kaplan, 251 Mass. 225, 228 ; DeMarco v. Pease, 253 Mass. 499, 509 .

The remaining request was in the following terms: “If the.experience in laying gas pipes in the city of Pittsfield has determined that three feet is the proper and reasonable depth to lay such pipes and is the general accepted practice in the laying of gas pipes then upon the evidence, and agreements in the case, the plaintiff cannot recover.” In Hill v. Winsor, 118 Mass. 251, 259 , the court said: “ . . . there is no rule of law which exempts one from the consequences of his negligent conduct upon proof that he proceeded in the usual manner and took the usual course pursued by parties similarly situated, although he was without notice that he could not safely do so. The defendants cannot protect themselves by proving the careless practices of others.” A jury could well find negligence of the defendant in laying or maintaining gas pipes within the frost zone. See Smith v. Boston Gas Light Co. 129 Mass. 318 ; Thompson v. Cambridge Gas Light Co. 201 Mass. 77 . This request did not state the standard by which the liability of the defendant was to be determined.

Exceptions overruled.