Mashington Gaslight Company v. District of Columbia

In July, 1879, Marietta M. Parker sued the District of Columbia to recover damages for an injury to her person, alleged to have been suffered from stepping into a certain 'deep and dangerous hole' in the sidewalk of one of the streets of the city of Washington. The declaration contained all the essential averments necessary to fix liability on the corporation. Prior to the bringing of the suit, when Mrs. Parker first made demand against the District, the latter notified the Washington Gaslight Company (spoken of hereafter as the 'Gas Company') that it would be expected to indemnify the District for any amount which it might be compelled to pay to Mrs. Parker; and when the suit was commenced the gas company was also informed, and opportunity was afforded that company to defend. The proffer was not availed of, although, on the trial of the cause, which resulted in a verdict and judgment against the District for $5,000, officers of the gas company testified, and the counsel of that company was present during a portion of the trial, but purposely abstained from taking part in the defense. The action now here was brought by the District of Columbia against the gas company to recover over the amount of the judgment obtained by Mrs. Parker against the District, and which had been paid by it. The cause of action relied on to sustain this recovery was briefly as follows: That 'the deep and dangerous hole' averred by Mrs. Parker to have existed, and which she alleged to have been the cause of her injury, and upon which her recovery was had, was proven on the trial of her case to have been an open gas box placed and maintained in the sidewalk by the gas company for its own use and benefit, and which it was its duty to repair; that this duty had been grossly neglected, by allowing the box to remain unrepaired, thus causing the injury for which the city had been held liable. The declaration, moreover, averred notice to the gas company, and the fact that adequate opportunity was given it to defend, and the failure of the gas company to act in defense of the suit. To this demand the defendant, the gas company, filed a plea of the general issue, and by stipulation it was agreed that it might thereunder avail itself of any defense which it might have.

On the trial of the cause, before a jury, testimony was introduced tending to show that the gas box or stopcock box in question was placed by the gas company in the sidewalk in the city of Washington in 1873, this gas box being one of the customary appliances used by the company when connecting its mains with a house where gas was to be used; that this box consisted of an iron cylinder 4 inches wide and 2 1/2 feet deep, with an iron cover. The box served the purpose of affording access to a cock in the service pipe, which latter conducted the gas from the main of the company to the gas meter in the house, whence it was carried to the burners. By means of this box or cylinder, on removing the cover therefrom with a key made for the purpose, the cock in the service pipe could be reached, and the gas be thus turned on or off from the house. It was, moreover, shown that this box was placed in the sidewalk so as to be level with its surface, and that the cover thereon was held in place by lugs which slipped into slots made for the purpose. In addition it was proven that the box was put in by the company in accordance with the general methods used for introducing gas, and in compliance with the form of structure pointed out by an ordinance of the board of common council of the city of Washington passed in March, 1868. Both parties introduced proof showing that the service pipe, the stopcock therein, and the gas box were put in at the request of the owner of the premises in front of which they were situated; that they were constructed by the gas company, which furnished the materials, and worked as any other plumber would have done, being paid therefor by the owner of the premises; that in order to do this work the company had first to obtain permission to open the street to make the requisite connections, and had paid to the District a permit fee of one dollar. There was, moreover, proof tending to show that when the gas box was first put in the work was skillfully done; that it was originally placed in a brick footway then existing and near the curbstone, but that subsequently the board of public works of the District of Columbia widened the footway, and in consequence of this widening the gas box came to be about in the middle of the sidewalk.

Testimony was also introduced tending to show that where the owners of private property paid the gas company the cost of laying lateral service pipes and connections with the street mains, and discontinued the use of gas in the premises, they would not be permitted to remove the same; that an adjoining private property owner was never permitted to have a key to the gas box; and that the defendant has, so far as such property owners are concerned, maintained and exercised exclusive supervision and control of the same. There was evidence also introduced tending to show that the defendant had men employed whose duty it was to examine, about the 1st of each month, the condition of the meters in every house throughout the District into which gas had been introduced by the defendant, and that it was the duty of these employees to notice and report whether the gas boxes in the sidewalks were uncovered or out of order. The evidence moreover tended to establish that the superintendent of the gas company, when his attention had been called to the fact that gas boxes needed repair, had often caused such repair to be done, by having the covers put on, or doing any other required work. To the contrary, proof was also introduced tending to show that after the gas boxes were put in the gas company took no further care or charge of them.

The District offered in evidence the record of the suit brought by Mrs. Parker, and made proof that it paid the amount of the judgment therein rendered. The testimony which had been given by Mrs. Parker on the trial of that case was also offered in evidence, and admitted over objection, although no exception was reserved. This testimony tended to show that the sole cause of the injury for which she sued and had recovered was an open gas box, in which, while walking on the street, her foot had become engaged. The deposition of Mrs. Parker taken in the case on trial was also offered in evidence by the District, and contained the following description of the accident:

'The accident occurred in front of 121 C street N. E., about 5 o'clock in the afternoon of March 10, A. D. 1879. The immediate cause of the accident was an open gas box in about the center of the sidewalk. It was a perfect trap, as it was upon a level of the sidewalk, except at the side I stepped into, and there was a part of a brick sunk at least an inch and a half below the level of the walk, so that any one, in walking along, could not see but the pavement was level until, like myself, when too late. Had not the half of the brick been sunken, the open hole would not have been so dangerous; for, upon stepping into the hole, I tried to step back, when I found my box-toe shoe fast in the hole, and the sunken brick let my heel down with my entire weight, one and one-half inches more than would have occurred had the pavement been perfect around the gas box.' The District, moreover, after proving the death of H. Clay Smith, a witness who had testified in the original suit, and the loss of the notes of his testimony, offered to prove by the stenographer who had taken the original notes what had been Smith's testimony. This was objected to, and, on its being overruled, exception was reserved. The stenographer testified that Smith had, on the original trial, sworn that he lived within a few doors of the place where the Parker accident happened, and had noticed the gas box which caused the accident to be out of order 'for two or three weeks prior to the accident to Mrs. Parker, and that he did not know how the top of the box came off, but he had noticed it.'

At the close of the testimony offered in behalf of the District, the defendant company requested a peremptory instruction in its favor, which was refused, and exception was taken. The plaintiff then asked for the following instructions: First, that the obligation of supervising and keeping the gas box in order rested on the gas company, and that if it had neglected so to do, after actual notice of its being out of order, or after such condition had existed for a sufficient length of time to have enabled the company, with reasonable diligence, to have discovered it, the gas company was liable; second, that if the company had notice of, and opportunity to defend, the original suit, it was bound by the judgment therein rendered. These instructions were given. The defendant company asked for several instructions, which were refused, and exceptions were reserved, consequent on such refusal. They were: First, that the gas company was not obliged to keep the box in order; second, that, even if it was originally so bound, the widening of the footwalk by the city, and the consequent shifting of the box to the middle of the sidewalk, had relieved it of such obligation; third, that if the jury found from the evidence that the injury of Mrs. Parker was caused, in whole or in part, from a defect in the sidewalk alongside of the gas box, the defendant should have a verdict; fourth, if the jury found from the evidence that the injury for which Mrs. Parker recovered was caused by the fault of both parties to the suit, the defendant was also entitled to a verdict. This last request the court declined to give on the ground that it was already covered by a general instruction given. The court, in its general charge, instructed the jury substantially as follows: That the primary duty rested on the gas company to repair and keep the gas box in order,-hence, if the District had been compelled to pay, as a result of the negligence of the gas company in discharging its legal obligation, the District was entitled to recover the amount; that notice having been given of the demand made by Mrs. Parker, and of the suit brought by her, and an opportunity having been afforded the gas company to defend the same, the judgment in such suit was the thing adjudged against the defendant company, as to the matters which it concluded. It also instructed that, as the original action was for an accident caused by a 'deep and dangerous hole,' it was lawful and necessary to go beyond the face of the complaint, and ascertain from the evidence whether the deep and dangerous hole referred to was the gas box of the defendant company; that the jury were to determine, by an examination of the testimony offered in that case, whether the verdict in the first suit was alone based on the gas box. If so, the District was entitled to recover. If, on the other hand, the jury found that the controversy in the first suit involved the question of liability on the part of the city for the gas box, and also for defective bricks around it, then it was the duty of the jury to ascertain whether the judgment which had been rendered against the city was because of the defective gas box, or because of both the defect in the gas box and the bricks; and, if the jury found that the judgment had been rendered in the former suit solely on the ground of the defective gas box, that judgment would be conclusive. If there was doubt on what ground the jury in the previous suit found its verdict, if the question of the gas box and bricks was before it, then the judgment would not be conclusive, and it would be an open question for the jury to weigh the evidence which might be produced on the subject, irrespective of the former judgment. If, in that contingency, the jury were satisfied that the injury could not have happened but for the depression in the sidewalk occasioned by the bricks, or that the injury was aggravated by that fact so that 'they could not apportion the injury between the gas box and the sidewalk, quite a grave question presents itself.' On this grave question the court instructed: 'If you can come to the conclusion that this depression in the sidewalk was one of the joint causes of the injury, I feel bound to say that I do not see how the District of Columbia could recover damages from the gas company. If, on the other hand, you are satisfied that the defect in the pavement played no conspicuous part in the injury, but that it was wholly due to the exposed condition of this gas box, then only one question remains; and that is whether the gas company was negligent in regard to the condition of that box, and whether its exposed condition was due to the negligence of the company.' On the subject of negligence of the gas company, the court instructed that the former judgment did not conclusively fix upon the defendant the charge of negligence; that the negligence of the company might be ascertained from two conditions,-either proof of actual negligence, or of such failure to repair for a sufficient length of time as would justify the implication of negligence. There was a verdict and judgment for the plaintiff, the District of Columbia, and on appeal it was affirmed by the supreme court of the District, sitting in general term. The opinion of the general term is reported in 20 Dist. Col. 39. Thereafter the case was brought by error here.

Walter D. Davidge and Wm. B. Webb, for plaintiff in error.

A. T. Thomas and A. B. Duvall, for defendant in error.

Mr. Justice WHITE, after stating the case, delivered the opinion of the court.