Fesler v. Hunter

• Decision Date: 26 January 1931
• Docket Number: No. 17059.,17059.
• Citation: 35 S.W.2d 641
• Parties: FESLER v. HUNTER et al.
• Court: Missouri Court of Appeals

35 S.W.2d 641

FESLER v. HUNTER et al.

No. 17059.

Kansas City Court of Appeals. Missouri.

January 26, 1931.

Rehearing Denied February 16, 1931.

Error to Circuit Court, Jackson County.

"Not to be officially published."

Action by Wallace W. Fesler against Nicholas Hunter and another. Judgment for plaintiff, and defendants bring error.

Reversed.

Henry S. Conrad, L. E. Durham and Hale Houts, all of Kansas City, for plaintiffs in error.

Myer M. Rich and Isadore Rich, both of Kansas City, for defendant in error.

CAMPBELL, C.

This is an action for personal injury alleged to have been sustained by the plaintiff while he was in the employ of the defendants in a drug store. The plaintiff recovered judgment from which an appeal was taken to this court. Thereafter the appeal was dismissed, and the case is here on writ of error issued upon the petition of defendants. We will refer to the parties, plaintiff and defendants, as they appear in the trial court.

In plaintiff's petition it is alleged that defendants conducted a drug business at 1003 Grand avenue, Kansas City, Mo.; that the store consisted of a main store room, fronting upon Grand avenue; that a basement room was directly thereunder and connected therewith by a stair passageway; that the basement room is by walls of concrete or brick divided into various small compartments, one of which is located in the southwest corner of the basement and used as a vault in which to keep records, money, etc., and that the same was lighted by an electric light bulb suspended from the ceiling that the current operating said light bulb was controlled by a switch set in a metal box and manipulated by means of push buttons; that a gas meter was contained in one of the compartments and was connected with a lateral gas pipe extending from the meter to the gas main of the Kansas City Gas Company which lay under Grand avenue and about ten feet west of the foundation wall of the basement; that the gas conveyed from the main through the lateral pipe in the said room was highly inflammable, explosive, and dangerous, and was likely to ignite and explode when brought into contact with a spark of fire; that another pipe extended from said wall through said foundation wall at a distance of about four feet from the aforementioned lateral gas pipe, and terminated a few feet west of the foundation wall; that until about the 3d day of December, 1919, the compartment last above mentioned contained and housed an electric motor used by defendants and the Lathrop Building, which motor, when in operation, discharged and threw out flashes or sparks of fire; that on the 30th day of December, 1919, and for some months prior thereto, plaintiff was employed by defendants in their said drug store as a pharmacist; that he was required from time to time to go into the basement and to open and enter the said room therein so used by defendants as a vault, and to turn on and off the light therein by means of the said switch; that some time prior to the 30th day of December, 1919, defendants discovered that natural gas was escaping into said basement and into said compartment containing said electric motor; that from time to time natural gas would collect in said room or compartment in such quantities that the sparks of fire so thrown out by said motor would ignite said gas and cause the same to explode; that after several explosions had occurred in said room defendants removed said electric motor, but did not prevent, or attempt to prevent, the further escape of natural gas into said basement, and that natural gas continued thereafter to enter said basement and to gather and collect therein in great quantities, all of which defendants knew or by the exercise of ordinary care could have known, and of which plaintiff was wholly ignorant; that on the day last aforesaid the plaintiff in the performance of his duty opened the room in said basement so used as a vault, turned on the light therein, secured articles from the safe, pushed the button operating the switch for the purpose of extinguishing the light, and thereupon a spark from the switch ignited the natural gas which had accumulated in said basement and caused the same to explode with great violence, inflicting serious injury on plaintiff.

The negligence charged is that after the removal of the motor from the room defendants negligently failed to stop or attempt to stop the further escape of natural gas into said room and basement, and negligently permitted gas to gather and collect in large quantities, and carelessly and negligently maintained in said basement where said gas was so collected and had collected, the electric switch as aforesaid, all of which condition and situation the defendants either knew, or by the exercise of ordinary care on their part could have known, and that defendants negligently failed to warn plaintiff of such dangerous condition and negligently ordered and required plaintiff to work in and under such dangerous conditions.

The answer is a general denial and a plea that plaintiff's injury was caused by the negligence of the gas company with whom he had made a settlement in an amount unknown to defendants, by reason of which he had been fully compensated.

In the view we take of this case, it is necessary to state only the evidence favorable to plaintiff. Plaintiff, at the time of injury, had been employed about nine months. He filled prescriptions and waited on customers. The only other employee of defendants necessary here to mention was Mr. Bechtold, the oldest of the druggists, in time of service, and who had charge of the store and other employees when Mr. Hunter was not there. The hours of the druggists, of whom plaintiff was one, were so arranged that one would open the store at 7:30, leave about six, and another begin work later and close the store at night. Bechtold closed the store the evening before the explosion on December 30, 1919.

Plaintiff testified that on the morning of the explosion in question he opened the store; that he did not then, or at any other time, smell gas; that he was in the basement many times each day; that there had been two previous explosions, one in July or August, and one in late November or early December; that the first was slight, the second more severe; that after each of these explosions the gas company was notified by the defendants and an inspection of the premises made; that following the inspection made after the second explosion the motor pump was taken out; that on the occasion in question, after being in the store for several minutes, he went into the vault, procured a box of money, pressed the button to turn off the light, and the explosion occurred, in consequence of which he was severely injured.

Plaintiff's evidence disclosed that following the explosion of December 30, 1919, the street in front of the main building (defendants as tenants occupied a part of that building) was excavated about the gas main; that one of the mains was broken and contained a crack wide enough to receive a silver dollar edgewise; that from this point there was "a grayish color following along the main, which indicated escaping gas"; that the gas followed the main to an ammonia line, thence along the ammonia line into the basement; that the main in the street was not under the control of the defendants; that the switch for the vault light was not air-tight, and that when the light was switched off an electric are was formed and a spark occurred in the usual and normal operation of the switch; that the switch was of standard construction and free from defect and the are and spark a necessary incident to the turning off of the light.

The porter in the employ of defendants testified in effect that he smelled gas on many occasions, both before and after the pump was taken out; that on the evening before the explosion in question the smell of gas was "strong"; and that he opened the door of the storeroom in order to permit the gas to escape. There is no evidence that the porter's knowledge of the presence of gas was communicated to defendants. While he was a witness the following occurred:

"Q. You had been there before Mr....