Chattanooga Gas Co. v. Underwood

• Decision Date: 06 January 1954
• Parties: CHATTANOOGA GAS COMPANY v. Thomas R. UNDERWOOD, Jr. 38 Tenn.App. 142, 270 S.W.2d 652
• Court: Tennessee Court of Appeals

Page 652

270 S.W.2d 652

CHATTANOOGA GAS COMPANY v. Thomas R. UNDERWOOD, Jr.

38 Tenn.App. 142, 270 S.W.2d 652

Court of Appeals of Tennessee, Eastern Section.

Jan. 6, 1954.

Certiorari Denied by Supreme Court May 21, 1954.

[38 TENNAPP 144] Harry J. Schaeffer and Hunt & Ingle, Chattanooga, for plaintiff in error.

[38 TENNAPP 145] Graham & Brock, Chattanooga, for defendant in error.

HOWARD, Judge.

This action for damages for personal injuries grew out of a gas explosion in which the plaintiff, Thomas R. Underwood, Jr., was severely burned and permanently injured.

The accident occurred on February 5, 1951, while the plaintiff, a Captain in the Fire Department of the City of Chattanooga, was working with the Fire Prevention Bureau, a subsidiary of said Department. At the time plaintiff had answered a call to investigate a fire and explosion reported at 21 West Bell Avenue in North Chattanooga, and while he was inside the building a second explosion occurred, severely burning him on the hands, face, ears and neck. The building, located on the north side of Bell Avenue, was formerly used as a store but previous to the accident had been converted into two apartments. It was approximately 29 feet wide by 23 feet long, had two entrances, Nos. 21 and 22, with a bathroom built onto the back. This bathroom, approximately 6 X 8 feet, was used jointly by the two families occupying the building. Doors from each apartment opened into a hallway leading to the bathroom.

On the date of the accident there had been a fire of unknown origin about 5:30 P.M. under the floor of the bathroom, which was extinguished at 5:45 by firemen of the Chattanooga Fire Department, and at 6:45 while Charlie Jones, one of the occupants of the building, was in the bathroom lighting a cigarette with a light, the first explosion occurred. This explosion blew out all the windows in the building and Jones was so severely burned on his hands and face that he had to be sent to [38 TENNAPP 146] the hospital. Immediately following this explosion the defendant was notified that escaping gas might have caused the trouble, and two of its servicemen were hurriedly dispatched to make an investigation of the premises. They arrived about 7:05, found no gas pipes in the building nor evidence of any natural gas, though it appears to have been present.

Plaintiff, whose duties required him to investigate the origin of fires and explosions, lived only a few blocks away and arrived on the scene a few minutes after the defendant's servicemen. After being informed as to what had happened, plaintiff, accompanied by Elmer Perry, one of the occupants of the building, entered and started his investigation. They had been in the bathroom for just a few minutes when the second explosion occurred, injuring both of them. Only one of the defendant's servicemen was in the building at the time, and because he was standing in the front of the building he escaped injury. Though there were no fires following either of the explosions, the Fire Department returned to the scene immediately following the first explosion and was standing by when the second explosion occurred.

Following the second explosion an investigation disclosed that a connection at the bottom of the commode was defective; that through said defective connection sewer and other gases escaped, and that no vent had been provided for this purpose. By the force of the explosion the commode was blown loose from the floor, the pipe which connected it with the sewer was left open and exposed, and the walls and floor of the bathroom were badly burned.

On the following morning about 10 o'clock the defendant's employees discovered that natural gas was escaping [38 TENNAPP 147] from its three inch main about 50 feet from the building. This main ran parallel with the street and was only a few feet from one of the City's sewer lines. After excavating, two holes were discovered in the gas main, the holes being described as about the size of a pea and the blade of an ordinary knife. The escaping gas had followed along the main to the sewer pipe where it had entered through a hole in the top, and thence up the sewer pipe to the bathroom where the explosions occurred.

Plaintiff's declaration alleges that the defendant was guilty of the following specific acts of negligence:

(1) That the gas in the building which caused the explosions had escaped from one of the defendant's gas mains located nearby, which the defendant negligently permitted to become defective; that said main was under defendant's exclusive control.

(2) That the defective condition of the gas main had existed for a long period of time and was known to or should have been known to the defendant had the proper degree of care been exercised.

(3) That after notice of the first two explosions the gas company failed to correct the leaks, cut off the gas, or take other precautionary methods to prevent leaks.

(4) That the gas company was negligent in dispensing gas in such a manner that it could not stop or prevent the escape of gas with reasonable dispatch.

(5) That the gas company was negligent in failing to warn the plaintiff of the presence of gas and of the nature and extent of the danger, especially since an agent of the company was present on the premises when the plaintiff arrived, knew of plaintiff's arrival and talked to him, knew or should [38 TENNAPP 148] have known of the presence of gas and the nature and extent of the danger, and knew or should have known that the plaintiff was unaware of the nature and extent of the danger confronting him.

(6) That the gas company was negligent in not sufficiently odorizing its gas so that it could be detected upon reasonable contact, and so that the plaintiff would be warned by its odor of its presence and resulting dangers.

(7) That the defendant company was negligent in failing to make reasonable and proper inspections of its said gas mains to detect the escape of gas therefrom.

Defendant interposed a plea of not guilty and filed numerous special pleas in which it was averred that there were no gas lines into the building where the explosion occurred; that after the first explosion, which was preceded by a fire, defendant's servicemen were sent to the scene to ascertain, if possible, the cause of the explosion; that upon finding no gas lines in the building these men made an inspection of the gas main nearby where they discovered escaping gas caused by electrosis, over which the defendant had no control or knowledge of until after the second explosion.

Defendant further averred that the plumbing in the building was defective because there was no vent for the escape of sewer or other gas fumes, and that in addition thereto there was a hole in the top of the City's sewer main which entered the premises and through which the escaping gas entered and was carried to the building; that '* * * when gas escaped from its main it followed along the main and into the sewer line to the premises' where it 'collected and mingled with the sewer gas therein,' which condition was also unknown to the defendant.

Defendant further averred that when the plaintiff entered the bathroom he picked up the open cigarette [38 TENNAPP 149] lighter previously dropped by Charlie Jones and while closing it a spark was created which set off the second explosion; that the plaintiff being an official of the fire department and on the premises in the line of duty, assumed the risk and was guilty of contributory negligence.

Defendant also denied that the gas main was under its exclusive control, denied that it was responsible for the sewer line into which the escaped gas entered the premises, and averred that its gas was sufficiently odorized and that it had been diligent in investigating its mains, particularly the one involved, by the use of all scientific methods known to the gas industry.

The trial resulted in a jury verdict for the plaintiff for $7,500, which was approved by the trial judge, and judgment was accordingly entered. Thereafter, defendant's motion for a new trial was seasonably filed and overruled, and this appeal resulted. No question is made here regarding the amount of the verdict.

By proper assignments the defendant contends: (1) There was no evidence to support the verdict of the jury, and (2) the trial court erred in overruling its motion for a directed verdict made at the conclusion of all the evidence. While these assignments require a review of the evidence, such review is only to determine whether there is any substantial evidence to support the verdict. In such review we are required to take the strongest legitimate view of all the evidence favorable to the plaintiff, disregard all evidence to the contrary, and indulge all reasonable inferences to uphold the verdict. Jarratt v. Clinton, 34 Tenn.App. 670, 241 S.W.2d 941.

The rule is well settled that where there is any dispute as to any material determinative evidence, or any [38 TENNAPP 150] doubt as to the conclusion to be drawn from all the evidence, the motion for a directed verdict must be overruled. Lackey v. Metropolitan Life Ins. Co., 30 Tenn.App. 390, 206 S.W.2d 806. And only where one conclusion can be reasonably reached from the evidence and inferences is it proper for a trial court to direct a verdict. Coca Cola Bottling Works v. Selvidge, 4 Tenn.App. 558; Supreme Liberty Life Ins. Co. v. Pemelton, 24 Tenn.App. 576, 148 S.W.2d 1. Moreover, where there are conflicts in the evidence, this Court cannot assume the duty of determining liability or nonliability in tort actions but must leave such duty with the jury as the triers of facts. Jackson v. B. Lowenstein & Bros., 175 Tenn. 535, 136 S.W.2d 495.

With the foregoing rules in mind, we have carefully read the record and it is our conclusion that the case was properly submitted to the jury, and that there was ample evidence to support the verdict.

Plaintiff introduced as witnesses several members of...