#### Maggie Fullerton, Respondent, *v.*Glens Falls Gas and Electric Light Company , Appellant.

Third Department,

May 22, 1913.

Negligence —destruction of shade trees by gas —evidence — damages.

In an action against a gas company to recover damages for the destruction of shade trees, it appeared that almost immediately after defendant had laid a new gas main in front of plaintiff’s premises people passing along the street smelled gas, that the grass turned “yellow and crispy-like,” and that three of plaintiff’s elm trees, which were about thirty years old and eighteen or twenty inches in diameter, died, and that as soon as the main was repaired the gas stopped leaking.

Evidence examined, and *held,*sufficient to support a finding that the plaintiff’s trees were killed by the gas.

A verdict of $350 for the loss of three trees was not excessive.

Smith, P. J., and Kellogg, J., dissented, in part.

Appeal by the defendant, the Glens Falls Gas and Electric Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 3d day of June, 1912, and also from an order entered in said clerk’s office on the 21th day of June, 1912, denying the defendant’s motion for a new trial made upon the minutes.

*192*Jenkins & Barker [J. A. Kellogg*of counsel], for the appellant.

*Chambers & Finn [Walter A. Chambers*of counsel], for the respondent.

Howard, J.:

The plaintiff owns a house and lot in Glens Falls. In 1907 there were thirteen shade trees around the premises. Along the front of the house were four elm trees standing about twenty feet apart between the curb and the sidewalk. These trees were about thirty years old, were about eighteen or twenty inches in diameter, the tops were large and very nice. In 1907 the defendant laid gas mains in First street in front of the plaintiff’s premises. Soon after the gas was turned into the mains its odor was smelled in the immediate vicinity of the trees, grass turned “yellow and crispy-like,” leaves on the elm trees began to turn yellow and curl up. Three of the trees did not leaf out the next spring but died. In July, 1908, the defendant repaired the main near the trees, digging holes near the trees which had died in order to make the repairs. The jury has found that the gas killed the trees and has rendered a verdict for $350 damages.

The defendant asserts that the leakage of gas does not even make a *prima facie*case of negligence. It relies upon *Hammerschmidt*v. *Municipal Gas Co.*(114 App. Div. 290), decided in this court, and *Hutchinson*v. *Boston Gas Light Co.*(122 Mass. 219) to sustain this assertion. But let us trace these authorities to the bottom to discover the origin of this declaration and learn whether it is the law. In *Hammerschmidt*v. *Municipal Gas Co.*(114 App. Div. 290) this court said: “The fact that the leakage occurs does not make even a *prima facie*case of negligence.” This assertion seems to have been applicable to the facts then under consideration. *Hutchinson*v. *Boston Gas Light Co.*(122 Mass. 219) was cited to sustain this proposition; but the case is not a sufficient precedent on which to base a judicial declaration that a leakage of gas from mains is insufficient in any instance and in all instances to make a *prima facie*case of negligence. The leakage of gas in the Massachusetts case occurred at the time of an extraordinary *193public calamity in Boston — the great conflagration of 1872. On November ninth a fire devastated wide areas of Boston; sixty-five acres of the business section were burned over, property worth $80,000,000 was destroyed, 776 buildings were consumed. On the next day after the fire, November tenth, the day of the accident in question, the streets were filled with rubbish, wreckage and debris, and the fire was yet smoldering and smoking in the ruins; the militia and the police patrolled the burned district; there were continuous sounds of explosion; unprecedented excitement reigned; heavy buildings were falling upon the streets and great fires and excessive heat melted the pavements. These unusual energies and conditions were operating upon the earth and operating upon water pipes and gas mains, warping, wrenching and twisting them out of joint and out of place. It was under these conditions that the Massachusetts court held that the mere leakage of gas was not *prima facie*evidence of negligence.

The situation under consideration here is utterly unlike the situation in the Massachusetts case. Here a new gas main was laid in First street in July, 1907. Almost immediately thereafter—that is, in J uly and August — people passing along the street smelled gas. As soon as the main was repaired the gas stopped leaking. No convulsion of the earth or other unusual agency was shown to have affected the mains. It seems to me that the conclusion is irresistible that the pipes must have been negligently laid, negligently calked, negligently joined together; otherwise there could have been no escape of gas. The situation excludes everything but the negligence of the defendant. This was a new main and the negligence does not arise because of the failure of the defendant to repair after notice, but because of the original carelessness in laying the mains. It was not the negligence of maintenance where notice may be necessary, but the negligence of construction where notice is never necessary.

But the Supreme Judicial Court of Massachusetts, instead of holding that the leakage of gas *“*does not even make *aprima facie*case of negligence,” has held exactly the contrary. *(Smith*v. *Boston Gas Light Co.,*129 Mass. 318.) In the case *194just cited the Massachusetts court approved of this language by the trial judge: * * the fact that the gas escaped was *prima facie*evidence of some neglect on the part of the defendant.” That case was cited with approval by Chief Judge Cullen in *Griffen*v. *Manice*(166 N. Y. 188). There was abundant evidence to support the finding of the jury that the trees were killed by gas.

I do not think the verdict was excessive. The amount of damages sustained in this case, as in most other cases, is a matter of opinion. Unless the amount fixed by the jury is palpably and grossly excessive it should not be disturbed. Simply because our opinion differs (if it does) from the opinion of the jury, we should not interfere. The defendant by its appeal from a previous $200 verdict (148 App. Div. 481) brought about a reversal of the first judgment, not upon the merits, but upon a technicality. This has forced the plaintiff twice to litigate her claim, and this we should consider when we are asked to reduce her judgment.

The judgment should be affirmed, with costs.

All concurred, except Smith, P. J., and Kellogg, J., who dissented on the ground that the verdict is excessive.

Judgment and order affirmed, with costs.