Blackman v. Iowa Union Electric Co.

• Decision Date: 06 June 1944
• Docket Number: 46506.
• Citation: 14 N.W.2d 721,234 Iowa 859
• Parties: BLACKMAN v. IOWA UNION ELECTRIC CO.
• Court: Iowa Supreme Court

14 N.W.2d 721

234 Iowa 859

BLACKMAN v. IOWA UNION ELECTRIC CO.

No. 46506.

Supreme Court of Iowa

June 6, 1944

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 17th or 18th, at which time he ordered every one out of the house because of the gas. In the meantime the defendant's employees on February 11th had started digging outside the house to locate the place where the gas was escaping. When plaintiff left the house on either February 17th or 18th he gave the keys of the house to defendant and the keys remained with the defendant until March 10th. During this period the company was somewhat hampered in its digging efforts by the severe cold weather and while the company had the keys to the house, the water froze the pipes burst, and some of the rooms were flooded. The parties state there is no dispute over the amount of property damages or personal injuries. The leak was finally located in the middle of the street where the service line pipe had broken away from the gas main. The service line was a one-inch pipe and the superintendent of the gas department of defendant company testified that where a service line deteriorates to such an extent it is necessary for replacement, they replace the line from the main to the curb with an inch and a quarter pipe. He also testified the one inch pipe was probably placed there prior to 1912.

I. The plaintiff's single ground relied upon for reversal is that this is an action to recover damages for a nuisance and as such the question of contributory negligence is not applicable. A second ground is indicated in the argument to the effect that the evidence shows plaintiff was not in fact contributorily negligent hence no prejudice resulted in the failure to instruct on this issue. Plaintiff places a great deal of reliance upon what we said in Bowman v. Humphrey, 132 Iowa 234, 109 N.W. 714, 6 L.R.A.,N.S., 1111, 11 Ann.Cas.131. But there we only held that a nuisance might arise by negligent action and if it did, then recovery could be had without proof of negligence, or if negligence was proven then since it was not essential there need be no instruction with regard to plaintiff's proof of freedom of contributory negligence. It is sometimes difficult to distinguish between actions of nuisance and actions bottomed on negligence. 39 Am.Jur. 286; Upp v. Darner, 150 Iowa 403 at page 407, 130 N.W. 409, 32 L.R.A.,N.S., 743, Ann.Cas.1912D, 574. We speak of the "creation" and "maintenance" of a nuisance, usually in the sense that the damage is the necessary consequence of just what the person charged is doing or incident to the business he is carrying on. In such a case negligence is not essential. See 39 Am.Jur. 305 and 306, where the rule is stated: "Thus, a person who creates or maintains a nuisance is liable for the resulting injury to others without regard to the...