If it had appeared that the accident, which resulted in the injury of the plaintiff, was occasioned, in any degree, by the negligence of the plaintiff or her parents, such negligence would undoubtedly have been a defence to this action. But there is no proof of such negligence. It does not appear how the crack in Mr. Lannen's pipe, through which the gas escaped, was occasioned. There is certainly no evidence that it was occasioned by the negligence of plaintiff's parents. It is, however, wholly immaterial how the gas came into the cellar. It was entirely harmless there, except to persons inhaling it. If not interfered with, it had no tendency whatever to produce the accident complained of. It was a very explosive fluid, and the accident was caused by the explosion, and that was caused by the lighted match; and the only negligence, in any way connected with the accident, was in lighting the match in the cellar. Suppose there had been no gas in the cellar, and Lannen had placed an open keg of powder in the cellar, and had informed defendant and its agent that it was there, and the agent had carelessly thrown a lighted match into it, and thus blown up the house; could it have been said, in any legal sense, that the negligent act of placing the powder in the cellar contributed to the accident? To any such charge of negligence, it would have been a sufficient answer that the defendant and its agent were notified, as they were in this case, that the explosive element was there.
Smith lighted the match, and the judge at the circuit *Page 464 charged that he was the agent of the defendant, and not of the plaintiff. To this charge the defendant excepted. Smith was in the service of the defendant. Upon receiving information that the gas was escaping at this house, it sent Smith to ascertain where the leak was, and what occasioned it. It was the duty of the company to keep the meter and service pipe in repair, and it was for its interest to know when there was a leak, so that it might ascertain where it was and repair it; or, if it was not in the service pipe or the meter, that it might shut off the gas until the owner repaired it; and, hence, it was its custom to require notice of all leaks to be given to it. It selected Smith. He was in its employ, paid and controlled by it. He was in no sense the agent of plaintiff's father. He did not become such agent from the fact that his examination was also for the benefit of the occupants of the house. Such occupants would be benefited by the supply of the gas; and yet this did not make any of the persons supplying it in any way their agents. It sent Smith into this cellar to do a work, primarily for it, which might also benefit the occupants of the house; and yet it is clear he remained the agent of the defendant.
The judge also charged the jury that, if the injury was caused by the negligence of Smith in lighting a match, the defendant was liable; and to this charge the defendant excepted. The judge was not requested to charge as to the degree of negligence for which the defendant was liable, and it does not appear how he charged upon that subject, and it must be presumed that he charged correctly. The defendant was bound to send a competent agent to the cellar, who knew how to conduct himself in the presence of gas, as it was informed that the gas had escaped into the cellar before it sent him. And, if the agent was incompetent and ignorant of the explosive nature of gas, then it was negligent in selecting such an agent, or in not properly instructing him before he was sent. If it selected a proper and competent agent, then it is responsible for the carelessness of its agent. If the agent went into the cellar upon the business of the company, *Page 465 to do a work beneficial to the company, and at the same time beneficial to the occupants, he was bound to exercise ordinary care and prudence, and the jury did not err in holding that lighting the match in the cellar filled with this explosive gas showed the absence of such care. If it should be held that Smith was sent by the company, as its agent, to do a gratuitous service to plaintiff's father, he was still bound to some care, and he would certainly be liable for gross negligence. (Story's Agency, §§ 18, 20; 2 Kent's Com., 572; Rooth v. Wilson, 1 B. Ald., 59; Shiells v. Blackburne, 1 H. Black., 158, 162.) And the jury may well have found that Smith's act, which caused the explosion, was grossly negligent.
It matters not that the agent found that the leak was at a place which the defendant was not bound to repair. This was not known when he went into the cellar, and was the very fact which it was the interest of the defendant to ascertain.
Upon the whole case, therefore, I can see no reason to disturb the judgment below and favor its affirmance.
All for affirmance.
Judgment affirmed with costs.