Consumers Power Co. v. Nash, 10447

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: SIMONS, ALLEN and MARTIN, Circuit
• Citation: Consumers Power Co. v. Nash, 164 F.2d 657 (6th Cir. 1947)
• Decision Date: 08 December 1947
• Docket Number: 10448.,No. 10447,10447
• Parties: CONSUMERS POWER CO. v. NASH et al. SAME v. McDERMITT et al.

164 F.2d 657 (1947)

CONSUMERS POWER CO. v. NASH et al. SAME v. McDERMITT et al.

Nos. 10447, 10448.

Circuit Court of Appeals, Sixth Circuit.

December 8, 1947.

Maxwell F. Badgley, of Jackson, Mich. (Brownell & Gault, of Flint, Mich., and W. R. Roberts, of Jackson, Mich., on the brief; Bisbee, McKone, Badgley & McInally and Maxwell F. Badgley, all of Jackson, Mich., of counsel), for appellant.

Elmer H. Groefsema, of Detroit, Mich. (Elmer H. Groefsema, of Detroit, Mich., on the brief), for appellees.

Before SIMONS, ALLEN and MARTIN, Circuit Judges.

SIMONS, Circuit Judge.

The appeal record tells the tragic story of a gas explosion in and about the home of George Nash, near Flint, Michigan, on Jan. 19, 1946. The house and its contents were completely destroyed by fire and all persons in it were severely burned, — some fatally. Mrs. Nash, her daughter Annette, and Mrs. McDermitt, a visiting neighbor, died as the result of burns and injuries received. George Nash, aged three, and Clarence Colter, received burns necessitating numerous skin grafts; Georgette Nash was less seriously burned, and Mr. McDermitt was burned in attempting his wife's rescue. Nine law suits resulted which were consolidated for trial, and the jury returned a verdict for each plaintiff. Two appeals were lodged, one seeking to set aside the verdicts in favor of the members of the Nash family, and the other to set aside the verdicts for McDermitt. The appeals were consolidated, with a single record, and argued together.

The appellant had restored gas service to the Nash home on or about January 19, 1946, using an old service line which had been underground for almost 17 years, had been unused since April 10, 1933, and disconnected from the main line since April 20, 1944. There was substantial evidence that the service line was in bad order; that the appellant did not make a sufficient test of its condition; and had failed to correct impairment after it knew, or should have known, that gas was escaping. It was sufficient to take the case to the jury upon the issue of appellant's negligence. It is unnecessary to cite authority for the rule that we will not weigh the evidence or determine the credibility of witnesses. If a generally injurious result should have been foreseen as reasonably probable, the appellant was responsible for the injuries which followed, even though it could not have foreseen the precise manner in which the explosive gases might be vitalized. Reasonable apprehension of danger constitutes both the criterion of liability and of the causal relation between negligence and injury if there is no intervening efficient independent cause. This has been so thoroughly discussed by us in Johnson v. Kosmos Portland Cement Co., 6 Cir., 64 F.2d 193, that we need add nothing to what was there said, except to observe that Michigan law is in full accord. Kruis v. Grand Rapids etc. R. Co., 190 Mich. 105, 155 N.W. 742.

Decision might well be rested on the stated principles except that a single contention of the appellant gives us pause. It is the rule in Michigan that one seeking recovery for negligence must not only show that the defendant was negligent but that he himself was free from contributory negligence. Faustman v. Hewitt, 274 Mich. 458, 264 N.W. 863; Collar v. Maycroft, 274 Mich. 376, 264 N.W. 407; Pulford v. Mouw, 279 Mich. 376, 272 N.W. 713; Slingerland v. Snell, 283 Mich. 524, 278 N.W. 672. In death cases, however, there is a presumption that the decedent was exercising due care, though where there is an eyewitness to the accident the presumption disappears and the question of the plaintiff's contributory negligence is at large upon the proofs. Foote v. Huelster, 272 Mich. 194, 261 N.W. 296; Faustman v. Hewitt, supra; Collar v. Maycroft, supra.

Clarence Colter, who survived the explosion and fire, was available in court at the time of the trial. He was ten years old at the time of the accident and eleven when the case was tried. It is the appellant's contention that because he was in the house at the time of the explosion he was therefore an eyewitness, and as the only party capable of testifying to the activities of the injured and deceased persons during the period immediately preceding the accident, he should have been called by the plaintiffs in order to sustain the burden of proof which rested upon them to show that they and their decedents were free from negligence, and, this not having been done, the case in respect to all injured adults failed and the court should have granted the appellant's motion for a directed verdict.

In evaluating this contention it becomes necessary to consider the scope of the Michigan doctrine. In Teipel v. Hilsendegen, 44 Mich. 461, 7 N.W. 82, Mr. Justice Cooley, as early as 1891, conceding that absence of contributory negligence is part of the plaintiff's case, observed that if the facts and circumstances show negligence from which injury followed as a direct and proximate consequence and do not show any contributory negligence, a prima facie case is made out for the jury. It is not necessary that absence of contributory negligence should be shown beyond cavil...