Burk v. Huntington Development & Gas Co.

• Decision Date: 21 March 1950
• Docket Number: No. 10174,10174
• Citation: 58 S.E.2d 574,133 W.Va. 817
• Court: West Virginia Supreme Court
• Parties: BURK, v. HUNTINGTON DEVELOPMENT & GAS CO. et al.

Page 574

58 S.E.2d 574

133 W.Va. 817

BURK, v. HUNTINGTON DEVELOPMENT & GAS CO. et al.

No. 10174.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 7, 1950.

Decided March 21, 1950.

Syllabus by the Court.

1. An exception to the ruling of a trial court on the admission of testimony in the trial of an action at law before a jury, enures to the benefit only of the person against whom the ruling is made, and by whom the exception is taken. If the case being tried involves other parties defendant, such parties, to avail themselves of the benefit of such exception, must join therein, or take independent exception.

2. An exception to the ruling of a trial court on the admission of testimony in the trial of an action at law before a jury, or to the giving or refusal of an instruction to the jury in the case, must, before it may be considered in this Court on writ of error, have been taken in the trial court before the case is submitted to the jury for its decision.

3. In an action at law tried before a jury, the burden rests upon the plaintiff to establish his case by a preponderance of the evidence; and if all the evidence in the case fails to establish his claim by a preponderance of the evidence, the verdict should be for the defendant.

4. Where, in an action at law tried before a jury, it clearly appears from all the evidence introduced on the trial, that the verdict of the jury can have been reached only by a resort to conjecture as to the controlling facts in case, the same should be set aside by the trial court, and a new trial awarded, unless it be a case where it would be proper to render judgment notwithstanding the verdict.

Bernard J. Pettigrew, Charleston, C. E. Goodwin, Charleston, H. L. Ducker, Huntington, for plaintiff in error.

No appearance for defendant in error.

FOX, Judge.

This is an action for wrongful death, instituted in the Circuit Court of Cabell County, in which Frank Burk, administrator of the personal estate of Alexander Burk, deceased, is plaintiff, and the Huntington Development & Gas Company, a corporation, Charles H. Hagan, doing business as Charles H. Hagan & Company, City of Huntington, a municipal corporation, United Fuel Gas Company, a corporation, hereinafter referred to as the Gas Company, and Jacob H. Brown are defendants. The case grows out of an explosion in a building located on an alley between 9th and 10th Avenues, and leading from 7th to 8th Streets, in the City of Huntington which occurred about 9 o'clock A.M. on August 23, 1946, which resulted in the death of Alexander Burk, plaintiff's decedent, a child about one year of age. The declaration filed in the case contains allegations tending to connect all of the defendants with being responsible, in whole or in part, for said explosion, as will hereafter be developed. A demurrer to plaintiff's declaration interposed by the City of Huntington was overruled.

The case was tried before a jury on plea of the general issue, and at the end of plaintiff's evidence motions to direct a verdict in favor of the City of Huntington, a municipal corporation, and Jacob H. Brown, were sustained. During the trial, it was stipulated that the Huntington Development & Gas Company, a corporation, had been purchased or absorbed by the United Fuel Gas Company, which latter company had assumed the obligations of the Huntington Development & Gas Company, which latter company was no longer in existence, and for that reason it was dismissed from the case, and that the case alleged against it was to be prosecuted against the United Fuel Gas Company. Motions made for directed verdicts in favor of the remaining defendants, Charles H. Hagan & Company and the United Fuel Gas Company, were overruled, and the case was submitted to the jury on the issues arising between the plaintiff on the one part, and Charles H. Hagan & Company and the United Fuel Gas Company on the other. The jury returned a verdict for the defendant, Charles H. Hagan, doing business as Charles H. Hagan & Company, and a verdict for the plaintiff and against the United Fuel Gas Company in the sum of $10,000. A motion was made to set aside the verdict against the Gas Company, which motion was overruled, and judgment entered on said verdict on April 2, 1949, to which it excepted at the time. On June 6, 1949, on motion of the Gas Company, we awarded this writ of error.

The complicated nature of this case in respect to the number of defendants involved, and their connection with the explosion from which plaintiff's decedent met his death, requires a somewhat extended statement of the facts involved, as they are alleged in the declaration, and as they appear from the testimony introduced on the trial of the case.

The dwelling in which plaintiff's decedent lived at the time of his death was located on an alley about twenty feet in width, running from 7th to 8th Streets, and between 9th and 10 Avenues, in the City of Huntington. The first story of said dwelling was of brick construction, the walls of which extended down into the ground on both sides and ends. At the rear of the building was a small porch which had been enclosed and converted into a bathroom. At the time of the explosion, the Huntington Development & Gas Company supplied the premises with natural gas. This gas was furnished from a gas main line located on the north side of the alley on which the said dwelling faced, so that it was necessary for the Gas Company to maintain a gas line from its main line to the property line on which the dwelling was located. This line was laid underneath a brick paved alley, twenty feet in width, to the south side of said alley at a curb box adjacent to the property on which the dwelling was located. At this point, the customer's line connected with said curb box and extended along an automobile driveway between the dwelling in which the explosion occurred and a frame dwelling to the east owned by Jacob H. Brown. This driveway connected with a double garage back of the two dwellings and was made up of two strips of concrete to accommodate the tread of automobile tires. In this driveway was located the gas service line extending from the curb box aforesaid to a meter located near the enclosed porch on the rear of the dwelling in which the explosion occurred. The driveway also accommodated a sewer line installed for the use of the dwelling in which the explosion occurred, and the Brown dwelling to the east. The gas service line which accommodated plaintiff's decedent was laid between the west strip of concrete in the driveway and the dwelling in which the explosion occurred.

The sewer line in the driveway between the Brown house and the dwelling in which the explosion occurred had broken down some months before the explosion, and the owners of the premises served by such sewer, one of whom was Jacob H. Brown, being required by the city to repair the same, employed the defendant Charles H. Hagan & Company to perform that work. In connection with this work, excavations were made in the driveway, and it was also necessary to remove some of the brick pavement in the alley, and to excavate the ground over the sewer thereunder. It appears that before this work was undertaken, and thereafter, the brick pavement over the sewer settled more than once, and the City of Huntington undertook to correct the situation by dumping loads of dirt into the hole and replacing the brick. It appears that the last work performed in connection with this effort was a few days prior to the explosion. The gas line of the Huntington Development & Gas Company which lay under the brick pavement of the alley was a short distance from the excavation or the depression in the brick pavement aforesaid. It is in evidence that the presence of sewer gas was noticeable around the dwelling in which the explosion occurred.

This being the factual situation, the declaration alleged liability against all of the defendants for the death of plaintiff's decedent on various grounds. As to the City of Huntington, it alleged, in effect, that it wrongfully permitted said public alley to become and remain in bad order and out of repair, in that it permitted a large and deep excavation to be made near the center of said alley, and that there was a pipe line carrying natural gas from a main running along the northerly part of said alley to the plaintiff's decedent's place of residence, and that the same allowed a deep hole to develop on the surface of said alley, causing the wheels of trucks and vehicles to jar the surface when they struck said hole, and thereby caused the natural gas pipe extended across said alley to break at some point beneath the surface of the alley, thereby permitting natural gas to escape and travel through the ground and along the outside of said pipe in a southerly direction to the residence of plaintiff's decedent, and through and into the same, and to accumulate there in such quantities that said gas did, on August 23, 1946, come in contract with a lighted fire therein, without fault on the part of plaintiff's decedent, and explode with great violence, which explosion and ensuing fire greatly injured and caused the death of plaintiff's decedent. As to the Huntington Development & Gas Company, and the United Fuel Gas Company, the allegation is that they, or the one directly in charge, permitted said gas line across said paved alley to become broken and out of repair, and so close to the surface of said alley so that the same became broken and loose from the weight and jar of vehicles passing along and over said alley 'which said break in the pipe line permitted the natural gas therein to escape for a long time prior to the 23d day of August, 1946, and to travel through the ground and along the outside of said pipe in a southerly direction to the residence of plaintiff's decedent and through and into the same and to accumulate there in such quantities that said gas did, on the 23d day of August,...