ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.
The questions raised by the various assignments of error are, First, did the legal obligation primarily rest on the Gas Company to repair and keep the gas box in good order? Second, was that company liable over to the District in consequence
of its failure to do so? Third, was the testimony of Smith, the witness in the original suit, admissible? Fourth, was the judgment rendered against the District conclusive against the Gas Company?
We will consider these questions in the order stated.
First. Did the legal duty rest primarily on the Gas Company to repair and keep the gas box in order?
The Gas Light Company was incorporated by an act of Congress, approved July 8, 1848, and it was empowered "to manufacture, make, and sell gas . . . to be used for the purpose of lighting the city of Washington, or the streets thereof, and any buildings, manufactories, or houses therein contained and situate, and to lay pipes for the purpose of conducting gas in any of the streets, avenues, and alleys of said city; . . .Provided, however, That the said pipes should be laid subject to such conditions and in compliance with such regulations as the corporation of Washington may from time to time prescribe."
The trial court instructed the jury that the gas box was a part of the apparatus of the company, and hence it was its duty to exercise proper care over it and thus to prevent injury to persons using the sidewalk. The contention that this instruction was erroneous is based on the assertion that the gas box was not and could not become a part of the apparatus of that company, because under its charter only those things which were necessary in the manufacture of gas and which were needed to convey it after manufacture into and through the streets can be treated as part of its works. The proposition is without foundation. The plain object contemplated by the formation of the Gas Company was the supplying of the gas, to be by it manufactured, to consumers, and it is obvious that this could not be done without making a connection between the street mains and abutting dwellings. When such connections are made with the mains they receive from them and convey into dwellings highly inflammable material, which flows by an uninterrupted channel from the mains themselves into such dwellings. It must, therefore, have necessarily been contemplated that such connections with the
mains, as were from their very nature incidental to and inseparably connected with the consumption of gas, should be a part of the apparatus of the Gas Company and be under its control rather than under that of the city or the property owner. Indeed, the control by the Gas Company of the connection from its mains to the point of use is as absolutely necessary to make it possible for such company to carry out the very purpose of its charter as are the retorts and mains. Moreover the provision of the charter already quoted shows that it was thereby contemplated that the connections between the company's mains and the places where the gas was to be consumed should be made by the Gas Company and become a part of its apparatus. The charter does not confer the power to lay pipes upon those desiring a supply of gas, but gives such power to the company.
The danger of serious damage to the public at large and to the property of individuals and to the mains and other works and apparatus of the company, by the intermeddling of third parties, would be precisely as great in the case of the lateral service pipes and the gas boxes placed in the sidewalks as in the case of interference with street mains. The necessity for affording protection to the company against such interference undoubtedly led to the enactment of the eighth section of the company's charter, wherein it is provided:
"That if any person or persons shall wilfully do, or cause to be done, any act or acts whatever, whereby the works of said corporation, or any pipe, conduit, plug, cock, reservoir, or any engine, machine, or structure, or any matter or thing appertaining to the same, shall be stopped, obstructed, impaired, weakened, injured, or destroyed, the person or persons so offending shall forfeit and pay to the said corporation double the amount of the damage sustained by means of such offence or injury, to be recovered in the name of the said corporation, with costs of suit, in any action of debt, to be brought in any court having cognizance thereof."
The authority of the company over the gas boxes and its correlative duty to supervise and keep them in order thus deduced from the ...