City Of Richmond v. James

• Decision Date: 08 June 1938
• Citation: 197 S.E. 416
• Court: Virginia Supreme Court
• Parties: CITY OF RICHMOND. v. JAMES.

197 S.E. 416

CITY OF RICHMOND.

v.JAMES.

Supreme Court of Appeals of Virginia.

June 8, 1938.

Error to Law and Equity Court of City of Richmond; Willis D. Miller, Judge.

Action by Mrs. Bertrand T. James against the City of Richmond to recover damages for injuries allegedly caused by inhaling the fumes of illuminating gas. To review a judgment for plaintiff, defendant brings error.

Affirmed.

Argued before HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

James E. Cannon, of Richmond, for plaintiff in error.

B. Harrison Turnbull, John G. May, Jr., and V. P. Randolph, Jr., all of Richmond, for defendant in error.

EGGLESTON, Justice.

Mrs. Bertrand T. James filed against the City of Richmond a notice of motion for judgment, in which she sought to recover damages for injuries alleged to have been caused by (her) inhaling the fumes of illuminating gas, which she claimed had been allowed to escape into her residence through the negligence of the city. There was a jury trial which resulted in a verdict in her favor. Upon this verdict the trial court entered the judgment which is here for review. The parties will be referred to as they appeared before the court below.

For some time the defendant has been engaged in the manufacture, sale, and distribution of gas for cooking, heating, and lighting purposes in the cityof Richmond. Several years prior to July, 1935, it supplied gas to the plaintiff at her residence, 2318 Grove avenue, in said city. The city had run a service pipe from its main on Grove avenue into the plaintiff's basement where it had installed a meter. At the main in the adjacent sidewalk there was placed a stopcock for turning the gas on and off.

The evidence shows that usually another stopcock is installed inside the building where the service pipe enters the meter. Here the gas may be cut off for the purpose of installing stoves and other fixtures in the house. All of the piping leading from the gas main up to the meter (including the nearby intervening stopcock) is installed and owned by the city. All of the piping and fixtures in the building, beyond the meter, are installed and owned by the customer.

Whether the city had originally installed an inside stopcock near the meter in the plaintiff's residence is a matter of dispute, as we shall hereafter see.

On July 22, 1935, the plaintiff, who had for some time before been conscious of the odor of escaping gas in her home, complained of this to the city. On the next day Gary, an employee of the defendant, came out to the plaintiff's residence and inspected the piping to determine whether it was leaking. The inspection showed a small leak in the gas range (which had not been installed by the city and was not under its control, as aforesaid), but none in any of the other piping. This leak was promptly corrected and is not of further concern to us.

The plaintiff continued her complaints of the odor of escaping gas until on October 9, 1935, upon her request, Kern, an employee of the city, came to the residence, disconnected the gas line and removed the meter. In doing so he left the end of the pipe open and uncapped. But he insists that he shut off the gas completely at the stopcock near where the meter had been located in the basement, and that he tested the line and found no gas escaping. He says he did not turn off the valve at the sidewalk.

Five days later, on October 14, Ford, another city employee, came to the plaintiff's house pursuant to her further complaint of escaping gas. He testified that he found no leak, and that the gas had been cut off at the valve in the basement.

Mrs. James continued to detect the odor of escaping gas and finally, on either De cember 18th or 23rd (the evidence is not clear as to which date it was), she was made violently ill by the fumes. She then called her own plumber, Hazelwood, for an inspection of the pipes and fixtures.

Hazelwood testified that he noticed the odor of illuminating gas in the basement, and upon examination found that it was escaping from the end of the uncapped pipe to such an extent that he was able to light it with a match and it continued to burn. He testified positively that there was no valve for shutting off the gas in the pipe in the basement, from which the meter had been removed. For this reason he suggested to Mrs. James that the end of the pipe should be capped by him. But she said that she preferred to have the city do this. Thereupon she immediately telephoned the Gas Department which promptly sent out its employee, Friedhoff. Upon his arrival at Mrs. James' house, Friedhoff found that the gas was leaking from the end of the pipe, and that it was still burning where it had been ignited by Hazelwood. He. says that he cut off the gas at the sidewalk, removed the section of the pipe containing the inside valve, and placed a cap on the end of the pipe. He filed with the department a written report showing that the leak had been discovered and corrected in the manner just described.

Friedhoff testified that his visit to the house was on December 18th, while Mrs. James put the time as December 23rd, stating that Friedhoff had told her that the latter was the date of his visit.

At any rate, even after the trouble had apparently been located and remedied, Mrs. James continued to complain of escaping gas. To complaints made by her on December 31, 1935, January 9, May 7 and 8, 1936, respectively, the defendant sent inspectors who were unable to locate any escaping gas, or even to detect any odor thereof.

Mrs. James left her residence late in December, 1935, and after spending two weeks in a hospital in January, went to a hotel where she stayed until the following May.

The testimony of Mrs. James as to the existence of illuminating gas odors in her residence is corroborated by that of her sister, who testified that she was in the residence from July to December 15, 1935, and that she left on the latter date because she found that her health was being affected by the gas fumes.

The principal assignment of error is that the evidence is not sufficient to sustain the jury's finding that the city was guilty of actionable negligence.

We think the evidence adduced on behalf of the plaintiff justified the jury in finding that when the meter was removed from the plaintiff's residence on October 9, 1935, the gas was not cut off either at the valve in the sidewalk, or at the valve near the meter; that the end of the pipe was left open and uncapped; and that gas escaped into the house through this open pipe until it was capped by an employee of the city on the day on which Mrs. James was taken violently ill, either on December 18th, or on December 23rd.

Indeed, the positive testimony of Hazel-wood is that there was no cut-off valve near the end of the pipe, from which the meter had been removed, when he discovered the leak. While several employees of the city testified that this valve was on the pipe, the verdict of the jury has settled that conflict in favor of the plaintiff.

But, in any event, we think the jury was warranted in accepting the testimony of Hazelwood, a plumber of long experience, that when the meter was removed the end of the pipe should have been closed and capped. Obviously, if this had been done in the proper manner it would have prevented the escape of the gas, regardless of whether or not the valves had been closed.

Since one of its employees had removed the meter and left the pipe open and in an unsafe condition, the city had actual knowledge of the situation and should have known that gas would escape.

In Alexandria Mining, etc, Co. v. Irish, 16 Ind.App. 534, 44 N.E. 680, it was held that, where a gas company had knowledge of the imperfect condition of its pipes, it was not necessary to show that on a particular occasion it knew that gas was escaping therefrom, since from the condition of the pipes the company was bound to know that gas would escape. See, also, Dow v. Winnipesaukee Gas, etc, Co, 69 N.H. 312, 41 A. 288, 42 L.R.A. 569, 76 Am.St.Rep. 173; 12 R.C.L. p. 908, sec. 48.

Having knowledge that the pipe was open and uncapped, the city was guilty of continuing negligence in thereafter permitting its gas to flow through this pipe.

In Southern Indiana Gas Co. v. Tyner, 49 Ind.App. 475, 97 N.E. 580, it was said (page 585): "And if such gas company, after ob taining information that the pipes in a building through which it furnishes gas are leaking, by its agent, undertakes to find and repair such leaks, and fails to repair the same, or negligently repairs the same, and then continues to furnish its gas through such defective pipes, and injury results to a person who is himself without fault, such company is liable. The negligence in such cases consists, not in the failure to inspect the pipes of the owner of the building, but rather in the furnishing of the gas through the pipes after obtaining the knowledge or information that would suggest to a person of ordinary care and prudence the danger of allowing the gas to pass through such pipes."

In Lynchburg Gas Co. v. Sale, 160 Va. 783, 169 S.E. 577, this court sustained a verdict and judgment in which a gas company was held liable for turning its gas into a pipe without taking the necessary precautions to ascertain that the end of the pipe was uncapped and open, and that gas would necessarily escape therefrom. See, also, Schmeer v. Gas Light Co, 147 N.Y. 529, 42 N.E. 202, 30 L.R.A. 653.

At the request of the city the court granted, without objection on the part of the plaintiff, instruction B, which reads as follows:

"The court instructs the jury that if you believe from the evidence that when the gas meter was removed on October 9, 1935, defendant's employee properly shut off the gas at the valve near to the location of the meter, and by proper test found that no gas was leaking from the pipe, and that said valve was of standard design and in good condition, and thereafter when notified or requested by the plaintiff so to...