Amarillo Gas. Co. v. Walsh

• Citation: 257 S.W. 291
• Decision Date: 21 November 1923
• Docket Number: (No. 2202.)
• Parties: AMARILLO GAS CO. v. WALSH.
• Court: Court of Appeals of Texas

257 S.W. 291

AMARILLO GAS CO. v. WALSH.

(No. 2202.)

Court of Civil Appeals of Texas. Amarillo.

November 21, 1923.

Rehearing Denied January 2, 1924.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Action by D. M. Walsh against the Amarillo Gas Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Madden, Trulove, Ryburn & Pipkin and Chas. H. Keffer, all of Amarillo, for appellant.

Veale & Lumpkin, of Amarillo, for appellee.

BOYCE, J.

Appellee, Walsh, brought this suit to recover damages for the death of his son, John Walsh. It was alleged that the said John Walsh was "gassed" while in a bathroom for the purpose of taking a bath; that defendant furnished and installed in said bathroom an instantaneous or automatic gas heater, and that it did not use "ordinary care in furnishing, installing, and placing said water heater apparatus in said bathroom," or in "furnishing good and wholesome gas" for consumption therein; that by reason of defendant's negligence in these particulars gas escaped from said apparatus and caused the death of plaintiff's son. Defendant pleaded contributory negligence, and further that the death of John Walsh was due to other causes than asphyxiation; that under the city ordinance it was only required to install suitable piping and appliances for the furnishing of gas to the property line of its customers, and was under no duty with respect to the installation and inspection of fixtures and appliances within the customer's premises.

The case was submitted on a general charge, and appeal is from a verdict and judgment in plaintiff's favor.

The water heater in question was purchased from the defendant by a Mrs. Hove for use in a rooming house run by her. She also employed the defendant to furnish the appliances and connections and install the heater in place. It was accordingly installed in the bathroom of said rooming house. This bathroom was about 6 by 12 feet, and had one door and one window. It had a lavatory as well as a bathtub. The pipe put in by defendant to carry off the consumed gases consisted of a 4-inch pipe which ran up through the ceiling of the bathroom and then across the ceiling joists of the building about 15 feet, and was there connected into a brick flue. John Walsh roomed at this rooming house, and a short time before his death went into the bathroom to shave and take a bath. Some time thereafter he was found dead in the room. At the time he was found the window and door of the bathroom were closed, and the room when opened was filled with fumes of consumed gas and steam. The heater was burning, and the hot water was running in both the lavatory and bath tub, the waste plugs of which were open.

The heater was installed nearly a year before young Walsh's death. There had been no apparent indication of anything wrong about it until a few weeks before this, when another one of the roomers had been made sick while in the bathroom. On the day before Walsh's death another man had, while in the bathroom, been overcome by gas fumes and taken out unconscious. On the latter occasion the gas company was notified and paid to make an inspection, which was done on the morning of the day that deceased was asphyxiated, and the inspector reported to Mrs. Hove that nothing was wrong and the heater was safe for use. Another inspection was made on the day after Walsh's death, and this inspector gave it as his opinion that the flue with which the gas vent was connected was not high enough and would not always furnish sufficient draft. This flue was several feet lower than the peak of the roof, and this witness testified that the draft of flues in such condition would be affected by the direction from which the wind might be blowing. Soon after this time the heater was moved out of this bathroom and a larger one installed in another room connected directly into the flue.

There is no evidence as to the escape of any raw or unburned gas, and there is no evidence as to any chemical defect in the gas furnished for consumption, unless that might be inferred from the fact that the consumed fumes from the gas overcame the deceased. The evidence does not, when considered as a whole, warrant such an inference. It is sufficient to show that the fumes from the combustion of such a large quantity of ordinary gas as this heater would use, when confined in a small unventilated room, would be sufficient to overcome a person in the room. The reasonable deduction from the evidence is that the presence of these consumed fumes in the bathroom was due to the failure of the vent designed to carry them off to properly perform its function on this occasion.

The court's charge authorized a finding against the defendant on either of two theories of negligence — one in connection with the installation of the heater; the other in furnishing of "gas defective in its composition and unsafe for use." Since the evidence did not in our opinion warrant the submission of the latter theory, there was error in submitting it, which requires a reversal of the case. T. P. Ry. Co. v. Wisenor, 66 Tex. 674, 2 S. W. 667; H. & T. C. Ry. Co. v. Gilmore, 62 Tex....