Edward Douglass White

“ But the neglect of the District to repair the gas box being one of omission, as distinguished from the active doing of a negligent act, this negligence, in the absence of a statutory rule to the contrary, could only have resulted from two conditions of fact,-failure to repair after due notice of the defect, or proof of the existence of the defect for a sufficient lapse of time so as to justify the implication of knowledge and the resulting presumption of negligence. ”

“ As a deduction from the recognized right to recover over, it is settled that, where one having such right is sued, the judgment rendered against him is conclusive upon the person liable over, provided notice be given to the latter, and full opportunity be afforded him to defend the action. There is here no question of the sufficiency of the notice, or of the ample adequacy of the opportunity given the gas company to defend the suit, had it elected to do so. ”

“ 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 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 contention of the plaintiff was that the judgment in the first action was based on the liability of the District for the defective gas box, and was conclusive as against the defendant in this suit. The elementary rule is that for the purpose of ascertaining the subject-matter of a controversy, and fixing the scope of the thing adjudged, the entire record, including the testimony offered in the suit, may be examined. ”

“ Robbins, 2 Black, 418, 422: 'It is well settled that a municipal corporation, having the exclusive care and control of the streets, is obliged to see that they are kept safe for the passage of persons and property, and to abate all nuisances that might prove dangerous; and if this plain duty is neglected, and any one is injured, it is liable for the damages sustained. ”

“ Railroad, 49 Me. 119; Reggio v. Braggiotti, 7 Cush. 166; Westfield v. Mayo, 122 Mass. 100; Littleton v. Richardson, 34 N. H. 179, 187, and authorities there cited; Westchester v. Apple, 35 Pa. St. 284 ”