City of Indianapolis By and Through Bd. of Directors for Utilities v. Walker, No. 19255

• Docket Nº: No. 19255
• Citation: 168 N.E.2d 228, 132 Ind.App. 283
• Case Date: June 30, 1960
• Court: Court of Appeals of Indiana

Page 228

168 N.E.2d 228 132 Ind.App. 283 CITY OF INDIANAPOLIS, By and Through its BOARD OF DIRECTORS
FOR UTILITIES, a Municipal Corporation of the
State of Indiana, Doing Business as
Citizens Gas & Coke Utility, Appellant,
v.
George H. WALKER and Beatrice J. Walker, Appellees. No. 19255. Appellate Court of Indiana, Division No. 1. June 30, 1960.

[132 Ind.App. 286]

Page 230

Perry E. O'Neal, Patrick J. Smith, C. Harvey Bradley, Jr., Thompson, O'Neal & Smith, Indianapolis, of counsel, for appellant.

[132 Ind.App. 287] Mark W. Gray, Erle A. Kightlinger, Gustav H. Dongus, Armstrong, Gause, Hudson & Kightlinger, Indianapolis, Fansler, Fauvre, Dongus & Chambers, Indianapolis, of counsel, for appellees.

AX, Presiding Justice.

Appellees complained that appellant was negligent in permitting inflammable and explosive gas to escape from appellant's gas mains causing said gas to intrude upon premises of appellees where it exploded and damaged appellees' house and contents.

Appellant denied negligence, charged appellees with contributory negligence, and also that an intervening third party had damaged appellant's gas main while digging

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for a sewer construction, and that appellant had no knowledge of this damage prior to the explosion.

From a jury verdict of $37,985.94 in favor of appellees, appellant filed motion for new trial specifying ten causes. The sole assignment of error is the overruling of the motion for new trial.

Appellant's first two causes are that the verdict is not sustained by sufficient evidence and is contrary to law. Since the verdict was against appellant, which had the burden to prove its defenses of contributory negligence by appellees and proximate cause by the acts of the intervening third party, no question is raised as to the insufficiency of evidence concerning these defenses. Rowe v. Johnson, 1945, 223 Ind. 289, 60 N.E.2d 529, 530. The only question which must be answered in regards to these defenses is whether or not the verdict is contrary to law. In answering this question we must consider only the evidence most favorable to appellees, together with all reasonable inferences to be drawn therefrom. 'It is only 'where the evidence is without conflict and leads to but one reasonable conclusion and the trial court has reached a contrary conclusion', that the verdict or decision will [132 Ind.App. 288] be disturbed as being contrary to law.' Rowe v. Johnson, supra.

From our review of the evidence concerning these alleged defenses of appellant, we fail to find any undisputed evidence from which the jury might have inferred that appellees were guilty of contributory negligence, or that the intervening acts of a third party were the proximate cause of the damages suffered by appellees.

In order to test the sufficiency of the evidence to sustain the verdict for appellees, we must consider only the evidence most favorable to appellees, and we are confronted with the following facts:

Appellees owned as tenants by the entireties on the morning of February 6, 1955, a residence located at 3724 Manor Court in Indianapolis, Indiana. The appellees had no gas service in their home. They retired for the night, and shortly after midnight they were awakened by the smell of gas and the crying and choking of the children. Appellee, Mr. Walker, on his first trip to the basement, could not locate any difficulty after checking around the furnace, and he proceeded upstairs where there was a linen chute and there the odor of gas was more pronounced. He then returned to the basement, flicked on a light switch in the northwest corner of the basement and looked around a deep freeze and, discovering nothing significant, flicked the light switch off, which was immediately followed by a terrific explosion.

The explosion totally destroyed a home and personal property which had a combined alleged reasonable value at the time of the loss of in excess of the amount of the jury verdict. The facts as to the amount of damage are uncontradicted in this record, and the appellant offered no evidence to the contrary.

[132 Ind.App. 289] The explosion was caused by seeping gas from a leak in a main of the appellant. This was not disputed, and in fact was admitted at the oral argument before this court. Thus, we are here confronted with testing the evidence only to ascertain whether or not there is any evidence of negligence on the part of appellant which was the proximate cause of the explosion causing the damages complained of.

A witness, Mrs. Wirth, who lived a few doors north of the appellees' home, testified that she had called the appellant prior to the explosion and had made numerous complaints of smelling gas away from the water heater and in the esterly part of her basement; that after the gas company would respond to such calls, she would still smell gas in the same place, which was near the point where the service pipe entered her basement; that the appellant's service personnel were there at least once a month, and the last call was approximately a month prior to the explosion; that at no time prior

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to the explosion had they made bar holes or used an explosion meter; and, that prior to the explosion she had smelled gas during the winter of 1954 and 1955 on an average of once a week.

In the early afternoon on the day following the explosion, the appellant by a process of driving bar holes and using Davis explosion meters ascertained a break in one of its mains in front of the home of Mrs. Wirth, which break was of such size that the operator of the excavating tool had to turn his equipment around in the opposite direction to avoid gas blowing in his face.

The excavations of the appellant further revealed a drainage tile approximately a foot to a foot and a half below the main, which was broken but which tile led to the foundations of the appellees' home although it did not directly enter the basement. It was stipulated [132 Ind.App. 290] by the parties that this drainage tile had been installed in its present position prior to the installation of the gas main.

Two segments of steel pipe removed by appellant from the break in the gas main were tested by experts who testified that the break occurred approximately one and one half to two years prior to the explosion.

The evidence indicated a possibility that the damage to the main might have been caused by the Wm. F. Steck Company when it dug a ditch in the street in front of the Wirth property to make a sewer tap approximately sixteen months prior to the explosion. However, the evidence indicated that the appellant also had the opportunity to have damaged the pipe at about the same time when it connected gas to the Wirth residence. The most that this evidence indicated was ample opportunity on the part of either the Wm. F. Steck Company or appellant to have damaged the gas main, and thus we have disputed evidence which this court will not weigh.

Irrespective of its initial damage and by whom caused, the gas main still remained fractured and leaking for a period of approximately two years prior to the explosion. During this time the appellant received frequent complaints of unexplained gas odors in the basement of the Wirth residence immediately in front of this this damaged main was leaking.

From the evidence presented the jury had the following facts in addition to others recited herein before it:

A husband and wife with two babies virtually blown and burned out of their home and all of their possessions lost in the explosion and resulting fire, without any previous forewarning whatsoever, and a leak of substantial proportions in a nearby gas main. There [132 Ind.App. 291] was evidence that in frozen ground gas will follow insidiously the line of least resistance that the open tile drain to appellees' house offered this line of least resistance as the ground was frozen at the time of the explosion; that for approximately two years the gas main was fractured and leaking; that a lady in front of whose house the leak existed and only a few doors from the appellees, had been making persistent complaints of gas leakage over a considerable extent of time to the appellant, which repeated complaints of the odor of gas were never eliminated by the activities of the gas company; that after the house had blown up, it only took seven hours by the use of standard and accepted practices to actually discover the leak and repair it, while months previously the appellant used neither explosion meter devices nor bar holes, which are standard practice, but merely went to the neighbor's home and 'tinkered' with the appliances; and, that this record was replete with references that the cause of this explosion was the gas which escaped from this open main.

The foregoing statement of the evidence favorable to the appellees in this case indicates that the evidence is amply sufficient to sustain the verdict. The record is voluminous with the Bill of Exceptions containing the evidence consisting of 566 pages. Without unduly lengthening this opinion

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with factual statements of witnesses, we are of the opinion that there is sufficient evidence in the record from which the jury could have inferred actionable negligence on the part of appellant in failing to take all necessary and reasonable precautions and to perform such acts as were necessary to prevent the explosive and highly inflammable gas from escaping from its own conducting lines to the damage of appellees, particularly since [132 Ind.App. 292] the evidence discloses that the appellant received several warnings that gas was escaping from its line in the vicinity of the residence of appellees in time to have corrected the situation and to have eliminated the hazard and danger following as a consequence of the escaping gas.

There are several decisions in Indiana and other jurisdictions which sustain a recovery on somewhat similar facts. The Consumers' Gas Trust Co. v. Perrego, 1895, ...