Blackman v. Iowa Union Elec. Co.

• Decision Date: 06 June 1944
• Docket Number: No. 46506.,46506.
• Parties: BLACKMAN v. IOWA UNION ELECTRIC CO.
• Court: Iowa Supreme Court

234 Iowa 859
14 N.W.2d 721

BLACKMAN
v.
IOWA UNION ELECTRIC CO.

No. 46506.

Supreme Court of Iowa.

June 6, 1944.

Appeal from District Court, Lee County; J. R. Leary, Judge.

Action for personal injuries and property damages caused by the escape of gas from defendant's gas mains onto plaintiff's property. After trial and verdict for plaintiff the trial court sustained the defendant's motion for new trial on the ground of his failure to instruct the jury on contributory negligence. Plaintiff appeals from such ruling and defendant appeals alleging other errors. Affirmed upon both appeals.

Affirmed.

[14 N.W.2d 722]

Hollingsworth & Hollingsworth, of Keokuk, for plaintiff-appellant.

J. O. Boyd, of Keokuk, for defendant-appellant.

MULRONEY, Justice.

The plaintiff sued the defendant electric and gas company for personal injuries and property damages caused by the escape of gas that flooded plaintiff's home in Keokuk, Iowa. In his petition he alleged the defendant “negligently and carelessly allowed gas to escape from its mains and become a nuisance in plaintiff's property and to flood into and through plaintiff's *** property *** occupied as his home.” Plaintiff pleaded general negligence and relied upon the doctrine of res ipsa loquitur and he also pleaded freedom from contributory negligence. Defendant pleaded a general denial and a specific charge that plaintiff was guilty of contributory negligence. After the verdict for the plaintiff the trial court thought he had committed error in omitting any instruction to the jury on the issue of contributory negligence and he sustained the motion for new trial on that ground. Plaintiff appeals from the ruling granting the new trial and the defendant appeals alleging other errors in the rulings and instructions of the trial court.

The record shows that the presence of gas in plaintiff's home was first discovered by plaintiff's wife on February 10 or 11, 1936. She testified that she called the defendant company, who sent a man to her home who told her it was not poison gas and it would not hurt her. When plaintiff, who worked on the railroad, became sick on February 12th while taking a nap on the downstairs couch, she called the defendant gas company again. This time they told her it was probably “back-up gas” and they would start digging to find it. Plaintiff told of his illness and his collapse on the way to work after his nap on the couch in the gas infested room. The doctor called to see the plaintiff every day until February...