which burned appellee's house, and that there was no intervening regulator or hindrance to obstruct the free and uniform flow of gas in such lines." In this case the court added: "In other words, to make such evidence competent, it was first necessary to show that the general condition of the other stoves was in all essential respects similar to the one that caused the injury. Such evidence, when the conditions are thus shown, is admissible "; 114 and the court proceeded to make a quotation from a West Virginia case,115 in which it was said: "The condition. and pressure of gas in the neighboring houses at the time of the fire, there being no intervening regulator or hindrance to the force of the gas between the burned house and the other houses mentioned, would clearly indicate what it was at the house of the plaintiff, and I see no valid objection to the answering of the questions." In the Indiana case in which the admission was made, as above stated, the court, after giving a summary of the evidence, said: "We think that all the witnesses who testified as to the condition of other stoves, etc., on that night, brought themselves within the rule laid down in the cases cited. That is, we do not think that before it can be shown that other stoves were overheated than the one causing the injury, where the supply of gas is received from the same general source, that such other stoves were supplied by the same sized service pipes, the same kind of valves, and the same kind of mixers; that they were the same general distance from the mains, and that the keys were turned down in just the same way. Such a rule would be unreasonable, and the law does not require unreasonable things to be done. The rule only goes to the extent as to require similar conditions to be shown.116 It would

114 Indiana, etc., Co. v. Long, 27 Ind. App. 219; 59 N. E. Rep. 410.

115 Barrickman v. Marion Oil Co., 45 W. Va. 634; 32 S. E. Rep. 327; 44 L. R. A. 92.

In making this admission the counsel admitting it evidently had in mind the case of Indiana, etc., Gas Co. v. New Hampshire,

etc., Co., 23 Ind. App. 298; 53 N. E. Rep. 485.

116 The court then cites Washington Tp., etc., Co. v. McCormick, 19 Ind. App. 663; 49 N. E. Rep. 1085; and Indiana, etc., Gas Co. v. New Hampshire, etc., Co.. supra, and says that they "should be so construed."

be folly to say that two persons living in different houses could testify or show to any degree of exactness, that they turned their keys just alike. But here it is shown that the service pipes were of different sizes, leading to different stoves, and yet the gas was forced through these different sized pipes where the keys were turned low to such a degree of pressure as to overheat the different stoves.

The witnesses all received their

It is not shown that the mixers

gas from low pressure mains. were all alike, but it is shown that appellant furnished them, and we think all these facts make the evidence competent. Two witnesses were permitted to testify as to the high pressure of the gas used by them for illuminating purposes on the night appellee's property was destroyed. The gas so used by them was supplied from low pressure mains of appellant. It is shown that the gas used for illuminating purposes is supplied through different burners than those used for heating purposes; that the pipes are smaller as a rule and that where used for illuminating no mixers are used. It thus appears that in such case conditions are dissimilar from those where gas is used for heating, although the supply is from the same general source. Under these circumstances we are inclined to the opinion that the evidence was not admissible under the sale herein declared." 117

§633. Explosion caused by act of servant of gas company.

If the explosion is brought about by the act of a servant of the gas company, the question of negligence is still one for in

117 Indiana, etc., Gas Co. v. Long, 27 Ind. App. 219; 59 N. E. Rep. 410. The court, however, considered that the testimony of these two witnesses was harmless in view of the overwhelming evidence of the negligence of the defendant.

Where the suit was to recover the amount of a promissory note given in payment for gas to be supplied the maker, and in a counter claim the defendant asked damages for failure to comply with the contract to furnish gas, it was held error to

admit in evidence the testimony of witnesses who received gas from the same main as defendant, to the effect that they had an insufficient supply of gas during the time in question, without showing that these connections were of the same or a similar character as that of the defendant, where it was the defendant's duty under the contract to conduct the gas from the main to his residence. Washington Tp., etc., Co. v. McCormick, 19 Ind. App. 663; 49 N. E. Rep. 1085.

vestigation; for the explosion may have been occasioned without any negligence on the part of the servant, in which event the company would not be liable. Whether or not the servant negligently occasioned the explosion is a question for the jury."

118

§634. Company undertaking to repair consumer's pipes or fixtures.

It has already been stated that if a gas company undertake to inspect a consumer's pipes in his house it is chargeable with the same degree of care as it is in the inspection of its own pipes. And this is true where it undertakes to repair such pipes or the consumer's fixtures. Thus, where a notice to consumers was printed on the back of its bills that as soon as a leak in the house was discovered the company should be notified; and a consumer notified the company of such a leak, whereupon a messenger sent to the house, who said he had come to repair the leak, which he said was in a chandelier in the front room; and after examining it, stayed about twenty minutes, and left, saying it was all right; and that night the plaintiff was injured by the escaping gas, the leak being in the pipe inside the casing of the chandelier-it was held that the company was liable. "Entering upon the work," said the court, "the defendant was bound to do it with reasonable care.” 119 The same rule of reasonable care was applied where the gas company insisted upon making all gas connections between the house mains and its pipes.

120

118 Hann v. Weymouth, etc., Co., 18 Gas J. 186; Lannen v. Albany Gaslight Co., 46 Barb. 264; 44 N. Y. 459; Ward v. Gaslight and Coke Co., 14 Gas J. 915; 15 Gas J. 45, 75; 16 Gas J. 10, 38, 74, 108; German Ins. Co. v. Standard Gaslight Co., 70 N. Y. Supp. 384; 34 N. Y. Misc. Rep. 594; Ferguson v. Boston Gaslight Co.. 170 Mass. 182; 49 N. E. Rep. 115; United Oil Co. v. Roseberry (Colo.), 69 Pac. Rep. 588.

119 Ferguson v. Boston Gaslight Co., 170 Mass. 182; 49 N. E. Rep. 115; Anderson v. Standard Gaslight Co., 40 N. Y. Supp. 671; 17 N. Y. Misc. Rep. 625; United Oil Co. v. Roseberry (Colo.), 69 Pac. Rep. 588.

120 Bastian v. Keystone Gas Co.. 27 N. Y. App. Div. 584; 50 N. Y. Supp. 537. See also United Oil Co. v. Roseberry (Colo.), 69 Pac. Rep. 588; and Smith v. Pawtucket Gas Co. (R. I.), 52 Atl. Rep. 1078.

§635. Injury to shade trees.- Shrubbery.

If a gas company permit gas to escape from its pipes or mains whereby shade trees or foliage in the street or upon adjoining grounds are injured or killed by such escaping gas it will be liable for the damages occasioned. The owner of property may recover for trees, destroyed by the negligent escape of gas, planted by him in the street immediately in front of his premises.121 An instruction that the gas company is not liable, unless it could reasonably have apprehended that escaping gas would cause the death of vegetation is erroneous; for the company is bound to know the effect of gas upon trees and vegetation.122 Where evidence showed that the death of the trees was coincident with the leakage from the mains nearby of a large amount of gas; and that after the mains were recalked there was a renewed growth of vegetation, the verdict of the jury was not disturbed on appeal, although there was other evidence to show that the injury to the trees was not caused in the manner alleged.' It may be shown that other trees in the same vicinity were killed by gas le king from the same place, where the charge is that the gas permeating the soil poisoned and killed the roots of the trees.124 So where the charge is that the gas escaped into a sewer and thence into plaintiff's greenhouse, whereby his plants were killed, evidence is admissible to show the presence of gas in other greenhouses situated on the same sewer.'

123

125

121 Rockford Gaslight Co. v. Ernst, 68 Ill. App. 300; Armbruster v. Auburn Gaslight Co., 18 N. Y. App. 447; 46 N. Y. Supp. 158; Rauck v. Cedar Rapids Gas Co., 116 Iowa 89 N. W. Rep. 88.

122 Wichita Gas, etc., Co. V. Wright, 9 Kan. App. 730; 59 Pac. Rep. 1085.

123 Evans v. Keystone Gas Co., 148 N. Y. 112; 42 N. E. Rep. 513; 30 L. R. A. 651; 51 Am. St. Rep. 681; affirming 72 Hun. 503; 25 N. Y. Supp. 191; 28 Chic. L. News

160. See Rauck v. Cedar Rapids Gas Co., 116 Iowa -; 89 N. W. Rep.

88.

124 Rockford Gaslight and Coke Co. v. Ernst, 68 Ill. App. 300.

125 Butcher v. Providence Gas Co., 12 R. I. 149; 34 Am. Rep. 626; Armbruster v. Auburn Gaslight Co., 18 N. Y. App. Div. 447; 46 N. Y. Supp. 158; Sierbrecht v. East River Gas Co.. 21 N. Y. App. Div. 110; 47 N. Y. Supp. 262; Dow v. Winnipesaukee Gas Co.. 69 N. H. 312; 41 Atl. Rep. 288; 42 L. R. A. 569.

$636. Illuminating gas driving sewer gas into house.

If illuminating or natural gas is negligently permitted to escape into a sewer in such a quantity as to shove or drive sewer gas in the sewer into a house, and such sewer gas injure the inmates thereof, the gas company will be liable, although no illuminating or natural gas has ever entered such house; and the same would be true, of course, if such illuminating or natural gas did enter the house, but carried with it other gas that produced the damage.

126

8637. Explosion caused by act of third person.

127

The circumstances may be such that the company will be liable although the explosion is occasioned by the negligent act of a third person. Thus where the servants of a city injured oil pipes and the leaking oil found its way to a sewer, and thence to a canal which flowed under a mill and was there exploded, to plaintiff's injury, the oil company was held liable.1 ́s So where gas escaped from a pipe which the company was bound to keep in repair, and a servant of a third person negligently set the gas, which had accumulated in his master's building, on fire; and the fire spread to the plaintiff's building, the company was held liable.129 So where the plaintiff employed a gasfitter to place pipes in position in his house and connect them with the meter, whose servant went in search of escaping gas with a lighted candle, using the candle negligently, it was held that he could recover; and that it could not be said he had contrib

See Denniston v. Philadelphia Co., 1 Super. (Pa.) Ct. 599; 38 W. N. C. 332; 27 Pittsb. L. J. N. S. 14.

If other causes also operated to injure or kill the trees, the damages must be restricted to the injury the defendant did. Rauck v. Cedar Rapids Gas Co., 116 Iowa ; 89 N. W. Rep. 88.

126 Hunt v. Lowell Gaslight Co., 8 Allen 169; 85 Am. Dec. 697. 127 Aurora Gaslight Co. v. Bishop, 81 Ill. App. 493.

128 Lee v. Vacuum Oil Co., 54 Hun 156; 7 N. Y. Supp. 426.

129 Pine Bluff, etc.. Co. v. McCain, 62 Ark. 118; 34 S. W. Rep. 549; Lebanon, etc., Co. v. Leap, 139 Ind. 443; 39 N. E. Rep. 57.