Cracraft v. The Wichita Gas Company

• Decision Date: 09 March 1929
• Docket Number: 28,373
• Citation: 127 Kan. 741,275 P. 164
• Parties: ORPHA E. CRACRAFT, as Administratrix, etc., Appellee, v. THE WICHITA GAS COMPANY, Appellant
• Court: Kansas Supreme Court

275 P. 164

127 Kan. 741

ORPHA E. CRACRAFT, as Administratrix, etc., Appellee, v. THE WICHITA GAS COMPANY, Appellant

No. 28,373

Supreme Court of Kansas

March 9, 1929

Decided January, 1929.

Appeal from Sedgwick district court, division No. 1; J. EVERETT ALEXANDER, judge. Opinion on rehearing filed March 9, 1929. Former decision adhered to. (For original opinion of affirmance, see 126 Kan. 775, 271 P. 273.)

Judgment affirmed.

Fred S Jackson, of Topeka, and Robert D. Garver, of Kansas City Mo., for the appellant.

Robert C. Foulston, W. E. Holmes, D. W. Eaton, George Siefkin Sidney L. Foulston, George P. Powers and Lester L. Morris, all of Wichita, for the appellee.

OPINION OPINION ON REHEARING.

HOPKINS, J.:

A rehearing was granted in this case on the petition of the defendant. (Cracraft v. Wichita Gas Co., 126 Kan. 775, 271 P. 273.) The case was again briefed and orally argued and has been again fully considered.

Among other things the defendant contends that the original opinion "in effect applies the doctrine of res ipsa loquitur to the existing situation and holds that the cause of an explosion can be proven solely by the elimination of other causes." The contention is not fair. This court did not apply the doctrine of res ipsa loquitur in the instant case. Nor did it arrive at a decision solely through the process of elimination. As on the former submission, the defendant's argument questions the sufficiency of the evidence. It may be properly repeated that the evidence showed that the explosive agency was natural gas; that it came from the city sewer and escaped upon the premises through a soil pipe and that it must have come either from the line of the Wichison company or that of the defendant. There was no other source from which the gas could have come. There was substantial evidence to the effect that the line of the Wichison company was not changed nor were there any excavations made thereon from April 18 until May 3; that during that interim the gas stopped escaping on the premises where the explosion had occurred; that the thing which caused the gas to stop was some physical act which shut off the source of supply. On April 19 (the day following the explosion) a permit was taken out by the defendant to cut the pavement, "for the purposes of . . . repairing main." Was this not an indication that something was wrong with defendant's main? Since the Wichison company did not perform any physical acts on its lines, it cannot reasonably be said that the jury had no basis on which to conclude that the escaping gas came from the line of the defendant company. A somewhat similar situation was presented in Hashman v. Gas Co., 83 Kan. 328, 111 P. 468, where it was said:

"Direct proof of negligence is not essential to a recovery, as negligence may be established by circumstantial evidence alone. If the circumstances proved fairly authorize the inference of negligence, and the jury have drawn that inference, it is enough." (p. 329.)

In Railway Co. v. Wood, 66 Kan. 613, 72 P. 215, it was said:

"Circumstantial evidence in a civil case, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than the one arrived at by the jury." (Syl. P 2.)

(See, also, Railway Co. v. Colliati, 75 Kan. 56, 88 P. 534; Lane v. Insurance Co., 113 Kan. 365, 214 P. 92.)

The actionable negligence in the instant case arose only after notice of the escape of gas and a reasonable opportunity to repair. The finding of the jury upon this point was amply sustained. The defendant had opportunity to find the leak and repair it prior to the explosion, but failed to do so.

We cannot agree with the defendant that the verdict was arrived at by basing inference on inference. Nor can we agree that the rule announced in State v. Trimble, 12 S.W.2d 727, 732, if applied here would relieve the defendant of liability. In that case it was said:

"It is true that direct proof of negligence is not necessary. Like any other fact, negligence may be established by the proof of...