Christie v. Gas Service Co.

• Decision Date: 08 May 1961
• Docket Number: No. 1,No. 48121,48121,1
• Citation: 347 S.W.2d 135
• Parties: Bradley R. CHRISTIE and Stella M. Christie, Respondents, v. GAS SERVICE COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 135

347 S.W.2d 135

Bradley R. CHRISTIE and Stella M. Christie, Respondents, v. GAS SERVICE COMPANY, a Corporation, Appellant.

No. 48121.

Supreme Court of Missouri, Division No. 1.

May 8, 1961.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 12, 1961.

Francis Smith and W. H. Utz, Jr., of Smith, Sherwood, Utz & Litvak, St. Joseph, for defendant-appellant, The Gas Service Co.

Lewis W. Sanders, Sanders & Niewald, Kansas City, John E. Downs, Downs & Pierce, St. Joseph, for respondents.

HOUSER, Commissioner.

Action for property damages brought by the owners of a filling station against a supplier of natural gas, charging negligence in the installation of gas supply facilities and failure to discover and repair a gas leak, resulting in two fires and an explosion. Bradley and Stella Christie, the property owners, sued the supplier, Gas Service Company, joining Land Construction Company as co-defendant on the theory that Land nogligently caused its excavating machinery to unearth and break an underground gas pipe located in the filling station driveway, thereby causing the fires and explosion. Plaintiffs dismissed as to Land at the close of all the evidence. The jury returned a verdict for plaintiffs and against the gas company for $23,650. The gas company has appealed from the judgment entered on the verdict.

The gas company's first point is error in not directing a verdict in its favor at the close of the evidence for failure of plaintiffs to prove that the fires and explosion were caused by negligence on its part, and for the reason that plaintiffs were guilty of contributory negligence as a matter of law. We consider only the evidence most favorable to plaintiffs and inferences to be drawn therefrom, and the evidence of the defendants will be disregarded unless it aids plaintiffs' case against the gas company. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601. In 1939 plaintiffs were leasing a business property located in the northwest corner of the intersection of Belt Highway (north and south) and U. S. Highway No. 36 (east and west) in Buchanan County. On the north end of the property there was a drive-in restaurant; on the south end, a gasoline filling station. The area surrounding the buildings was gravelled. The southeast corner of the area located in the angle formed by the north line of Highway No. 36 and the west line of Belt Highway, a triangular-shaped tract, was part of the right of way of the state highway department. By agreement that portion of the triangularshaped tract abutting the property leased by plaintiffs was used by plaintiffs' customers and patrons as a part of the driveway into and out of the filling station and restaurant area. In 1939 the gas company extended a 4-inch gas main to this intersection. The main was laid underground, in the highway right of way. Supply lines were run from the main to the restaurant and filling station. About 40 feet east of the filling station and in that part of the triangular tract over which the highway department had an easement but which was commonly used by plaintiffs' customers, the gas company installed a 'drip riser.' A drip riser, a facility attached to a gas main, consists of a section of vertical pipe the bottom of which is attached at a low point in the main; the top of which extends approximately to the surface of the ground. It is a conduit through which moisture accumulating at the low point may be pumped out of a main. The drip riser in question consisted of a 3/4-inch steel pipe 56 inches over-all in length, threaded at both ends. The lower end was screwed into an elbow attached to the low point in the gas main. The top end, above ground originally, was capped. The top end of the drip riser was not covered by any box or protective device. It is not sound, standard or safe construction to install a pipe carrying natural gas in this manner, without any box or encasement to protect it other than the clay earth surrounding it. If the capped end is flush with the ground or below ground, the thrust and pounding of trucks and other vehicular traffic driving on the rock over the pipe will constantly hammer on it, force it down, and eventually damage and breck it. A gas pipe may break from metal fatigue if subjected to continuous varying stresses, and shock and vibration transmitted by particularly heavy traffic may cause a break in a pipe. If overlaid with a 2-inch asphaltic surfacing the ground around the pipe would be solidified and the lateral movement of the pipe reduced, but truck wheels could nevertheless transmit vertical blows to the pipe. The drip riser in question was located in the portion of the filling station driveway which for 20 years was used extensively and constantly by vehicular traffic of all kinds patronizing the filling station and restaurant--automobiles, trucks and heavy transports. It was a busy place, serving 2,500 people a day. The areaway surrounding the filling station and restaurant had been gravelled prior to 1950. There was no indication above ground of a drip riser underground. Plaintiffs, who purchased the property in 1946, had the area around the filling station blacktopped in 1953 with a 2-inch asphaltic surface extending over onto the highway right of way beyond plaintiffs' property line as much as 60 feet, covering the drip riser. Plaintiffs had no knowledge of the existence of the drip riser. Before plaintiffs did the blacktopping in 1953 plaintiffs did not advise or consult the gas company about its underground installations. The gas company made no inspection of the drip riser, from the date of its installation in 1939 until May 16, 1958. The customers had no trouble with the gas service, and the company forgot the drip riser during those intervening years. The gas company made combustible gas tests in the southwest corner of the intersection on December 8, 1957. By 1958 the blacktopping had cracked in numerous places and was breaking up. Plaintiffs decided to have it replaced. This was done on May 12, 1958 under a contract with Land by which the old asphalt paving was taken up, the gravel underneath stabilized where necessary, a 4-inch substantial base provided, and the area paved with a new 2-inch coating of asphalt. On the morning of May 12 Land employees marked off the old surface to be repaved and removed the old asphalt surfacing with a 21,000 pound high-loader, a caterpillar tractor with a steel bucket on its front. When the steel bucket was pushed forward, the teeth on the edge of the bucket broke up the old asphalt. The bucket then picked up the material and loaded it onto dump trucks. Land's operator was instructed to remove the old asphalt and 3 or 4 inches of the base. The foreman for land asked Bradley Christie if there was any danger of striking 'any utilities or anything' in the area in removing the old blacktop surface. Christie stated that he knew of nothing except an electrical conduit to which the current had been cut off. Christie did not tell Land personnel that the repair job extended 50 or 60 feet over onto highway right of way, or mention the gas main because to his knowledge it was between 4 and 5 feet underground. Christie did not consult or check with the gas company as to the location of its mains and underground installations. In removing the old asphalt the operator at all times operated his high-loader bucket from south to north. At no time did he scrape from north to south. At no time did the equipment strike a pipe similar to the drip riser. In removing the asphalt the operator of the high-loader uncovered an area with a 20-foot radius where the earth had a bad odor and was discolored a bluish color like earth through which gas has passed. This indicated that gas was escaping. This blue, smelly dirt was in the area where the drip riser was located. The odor increased as the area of bluish earth was exposed. Where the odor of natural gas was strongest the earth was drier than the earth surrounding it. It was 'readily crumbly.' It appeared that natural gas had been passing through the clay earth for some time. According to the Land employees, a strong odor or smell of natural gas was in the air all over the area from 8 to 11 a. m., and the odor increased as the blacktop was removed and the area uncovered. Within a period of two months prior to May 12, 1958 two or three telephone calls were made to the gas company by Mrs. Schalley, from Schalley's Liquor Store located across Highway No. 36 on the southwest corner of the intersection, complaining about the odor of natural gas around those premises. The last call was made a week or two prior to May 16, 1958. The employee who took the calls promised to report the complaints but the gas company took no action on these complaints. Franklin Harkrider, employee at the filling station, testified that 'a month or so before the explosion, two months, * * *' he reported to the gas company by telephone that there was a gas leak at the filling station. After having heard a noise at the natural gas meter (which was attached to the filling station some 40 feet from the drip riser), and having smelled a very unusual odor, he had been instructed by his employer to report the leak. Davis Welch, lessee of the filling station, testified that he heard the noise at the meter, smelled the odor of natural gas, and instructed Harkrider to report it; that that evening or the next day a man from the gas company came to the station to investigate. This happend 'Sometime prior, two or three weeks, it could be longer, I am not positive, to May 12.' The gas man looked around the premises, walked around the meter, then left and did not return. He had no tools and made no adjustments or tests.

About 1 p. m. on May 12, 1958 a fire broke out near the air compressor in the southwest corner of the basement of the filling station, where oil, greases, accessories and tires were stored and a gas-fired furnace and hot...