Alexandria Mining And Exploring Co. v. Irish
| Decision Date | 25 September 1896 |
| Docket Number | 1,994 |
| Citation | 44 N.E. 680,16 Ind.App. 534 |
| Parties | ALEXANDRIA MINING AND EXPLORING COMPANY v. IRISH, ADMINISTRATOR |
| Court | Indiana Appellate Court |
Rehearing denied Dec. 30, 1896.
From the Tipton Circuit Court.
Affirmed.
W. A Kittinger, E. D. Reardon, A. C. Carver, E. G. Ballard, E. B McMahan and W. S. Diven, for appellant.
W. F. Edwards, C. K. Bagot and T. Bagot, for appellee.
This action was instituted by the appellee against the appellant, in the Madison Circuit Court, to recover damages on account of the death of the appellee's intestate, through the alleged negligence of the appellant. The venue of the cause was changed to the Tipton Circuit Court where there was a trial by jury and a special verdict, upon which the court rendered judgment in favor of appellee for $ 3,250.00.
The complaint is in four paragraphs and to each of these a demurrer was filed and overruled, which ruling is assigned as error. The special verdict discloses that it is not founded upon the averments of the third paragraph of the complaint, and, hence, that paragraph may be treated as being out of the case.
The first paragraph of the complaint alleges, among other things, that the defendant was and is a corporation, organized and existing under the laws of the State of Indiana, for the purpose and object of digging, boring and drilling for natural gas and furnishing the same for fuel and light for hire to the general public, and with its principal office and plant in said city of Alexandria, Indiana; and that on the 31st day of March, 1894, and long prior thereto, the said defendant corporation had, owned and operated, for use in its said business in and about said city of Alexandria, a large number of natural gas wells from which the said natural gas used in its said business was supplied; and that for the purpose and object of furnishing gas to its consumers, the corporation owned and operated a system of underground pipe lines connected with its wells and extending through and upon the streets of said city; "that two of said pipe lines ran and extended through, upon and along Canal street in said city; and upon the west side of said Canal street there was a brick block or building, known as the F. N. Whitesides Block, and that said pipe line was extended and passed in front of said building at a distance of about thirty-one feet from the front and east side of said building."
Said paragraph further alleges that on the 31st day of March, and prior thereto, the defendant had negligently and carelessly and knowingly permitted and allowed its said pipe lines to become and remain in bad repair, and had negligently and carelessly permitted the pipe lines in front of said building to become rusted, rotten and incapable of controlling and retaining the natural gas contained therein and conveyed thereby, and permitted the same to become and remain in an unsafe and dangerous condition, and in so continuing to use the same as aforesaid; that the defendant at the time and long prior to the 31st day of March, 1894, had full knowledge and notice of the rusted, rotten and unsafe and dangerous condition of said pipe lines at said point; and that said decedent was twenty-seven years old, and left surviving him his widow and one child, a girl of the age of seven years, both of whom were dependent upon him for maintenance and support, and are still living; "that on the day of May, 1895, this plaintiff was duly appointed by the Madison Circuit Court, administrator of the estate of said decedent; and that by reason of the death of said decedent as aforesaid, the said widow and child were damaged in the sum of ten thousand dollars."
It is contended by appellant's counsel that this pleading is insufficient, because it contains etc.
In this contention we think counsel are in error. The averment is sufficiently plain and certain that the appellant negligently and knowingly suffered its pipe lines to become rusted and rotten and incapable of controlling and retaining the natural gas contained therein and conveyed thereby, and continued to use said pipes for the purpose of conveying gas therein when it knew them to be in such defective condition, and that by reason of such carelessness and negligence one of said pipes, on the 31st day of March, 1894, broke and sprung a leak at a point in front of the building in which appellee's intestate was engaged in working, at his usual occupation, and permitted the gas to escape and be discharged into the earth which it permeated and found its way through, accumulating in large quantities beneath and in the said building, and exploding when it came in contact with fire, by force of which explosion said building was shattered, blown down, and totally wrecked and destroyed, causing the appellee's intestate to be buried beneath the debris and to be burned by the fire which immediately followed the said explosion, and to be injured, from the effects of which he then and there died.
The proximate cause of the death of appellee's intestate is here charged to be the negligence of the appellant in knowingly permitting its pipes to become defective and out of order, in consequence of which, a leak was sprung, thus allowing the gas to escape and explode when coming in contact with fire.
Courts know judicially that natural gas is highly explosive and combustible, and that it will explode when ignited by fire. Indiana Natural Gas and Oil Co. v. Jones, 14 Ind.App. 55, 42 N.E. 487, and cases cited. And it was the duty of the appellant to so operate its pipes as to prevent the escape of gas therefrom in such quantities as to become dangerous to life and property. Mississinewa Mining Co. v. Patton, 129 Ind. 472, 27 Am. St. 203, 28 N.E. 1113.
The complaint discloses a clear violation of the duty mentioned, and if such violation of duty is shown to have been the proximate cause of the death of appellee's intestate, the appellant is liable. McGahan v. Indianapolis Natural Gas Co., 140 Ind. 335, 49 Am. St. 199, 29 L. R. A. 355, 37 N.E. 601.
It is not shown how there happened to be any fire at the point where the explosion occurred, nor the manner in which it took place, and it may be argued with some degree of plausibility that there might have been some intervening agency for which the appellant was not responsible, which was the more immediate cause of the explosion. See McGahan v. Indianapolis Natural Gas Co., supra. But the place where the gas is charged to have come in contact with the fire is shown to have been in or about the building in which the deceased was engaged in his daily business, --a place where fire is used for illuminating, and other purposes, constantly, and the explosion by such means was one of the results which the appellant was bound to anticipate in the operation of its gas mains. The complaint might be subject to a motion to make more specific in this regard, but we think it is sufficient to withstand the demurrer.
In Mississinewa Mining Co. v. Patton, supra, the complaint charged that the escaping gas came in contact with a lighted lamp in the dwelling house, and, without plaintiff's fault, exploded and set fire to and destroyed plaintiff's building and contents, without showing how the lamp came to be lighted, or other particulars indicating the absence of any intervening agency, but the complaint was held sufficient by the Supreme Court.
It was not necessary to aver that appellant knew that gas was escaping from the broken pipes and percolating through the ground to the place of the explosion. If the appellant had knowledge of the imperfect condition of the pipes, as charged, it was bound to know also that gas would escape. This was one of the natural results of the appellant's negligence and for these, it is responsible.
It is next insisted that the pleading is fatally defective in failing to charge that the appellee was free from contributory fault. It is averred generally that the appellee's intestate, by reason of the negligent acts of the appellant of knowingly allowing its pipe lines to become rotten and broken and out of order, whereby the gas escaped and the explosion followed, the intestate was injured, and that he died from the effects of his injuries, and that all this happened and took place "without any fault or negligence on his part." This was sufficient. It is a well settled rule of pleading in this State, in cases of negligence, that a general averment of freedom from negligence is sufficient, unless the court can say from the facts pleaded, as a matter of law, that the plaintiff contributed to his injury. Evansville, etc., R. R. Co. v. Athon, 6 Ind.App. 295, 51 Am. St. 303, 33 N.E. 469.
The averment that plaintiff was without fault has a technical signification, and entitles the plaintiff to make proof of any facts tending to show its truth. Chicago, etc., R. R. Co. v. Nash, 1 Ind.App. 298, 27 N.E. 564; Town of Salem v. Goller, 76 Ind. 291; Pittsburgh, etc., R. W. Co. v. Wright, 80 Ind. 182; Pittsburg, etc., R. W. Co. v. Burton, Admx., 139 Ind. 357, 37 N.E. 150; Citizens', St. R. R. Co. v. Spahr, 7 Ind.App. 23, 33 N.E. 446.
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