Fields v. Western Kentucky Gas Co.
| Decision Date | 04 February 1972 |
| Citation | 478 S.W.2d 20 |
| Parties | Otis FIELDS, Appellant, v. WESTERN KENTUCKY GAS COMPANY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Clifford Walters, Williams, Walters & Miller, Paducah, for appellant.
Tom Marshall, William E. Scent, Paducah, for appellee.
The plaintiff appeals from the action of the trial judge who directed a verdict for the defendant at the conclusion of all of the evidence in this personal injury action. Otis Fields, the plaintiff, was an employee of Presley Plumbing and Heating Company, a firm engaged in the performance of a contract to lay sewer pipe. Fields was instructed by his employer to make repairs to part of a manhole known as an 'invert.' Fields went down into the sewer manhole referred to as No. 119 in the evidence, and began to work. After he had worked in the manhole for about 20 minutes he felt slightly ill. At this time he struck a match to light a cigarette. Thereupon, an explosion occurred as a result of which he was burned.
The next day the defendant, Western Kentucky Gas, the owner and operator of gas mains in the area, was notified that a customer in the immediate vicinity of manhole No. 119 had smelled gas at the edge of his yard. On the following day, the defendant sent its employees to the location of the complaint. A leak in the gas main was discovered and repaired. The place of this leak was about 189 feet from manhole No. 119.
The plaintiff's evidence showed that a few days before the accident two men had dug down on the outside of the manhole and had removed two sections of pipe. There was some concrete in the sewer pipe on the side toward the place where the gas leak was subsequently found. These two men testified that on this occasion they smelled natural gas. The plaintiff stated that he was not informed of the presence of natural gas and did not smell natural gas when he descended into the manhole. He merely smelled a sour odor which was usually encountered there. The plaintiff also showed that when the defendant's employees investigated the complaint of the customer who smelled gas, one of the employees used a gas detector device and located the presence of gas in the vicinity of the manhole. An engineer, Elmer Hollis, testified on behalf of the plaintiff. His firm had designed the sewer system. He was asked if he had an opinion as to what caused the explosion. His testimony was:
'My opinion, after an investigation and after checking through our diary at the time of the accident, the only possible thing that it would be would be natural gas that had seeped through the wall down through the manhole and escaped through the atmosphere.'
The defendant introduced opinion testimony that the probable cause of the explosion was either sewer gas or fumes from a solvent called Can-O-Loc which had been used to seal pipe joints. The defendant also introduced testimony concerning its general practice in the maintenance and supervision of its gas mains. The same engineer who testified in such positive terms that the cause of the explosion was seeping natural gas also refuted the defendant's evidence concerning these other causes. He stated it was highly improbable that sewer gas would ever get to the vicinity of manhole No. 119 and that Can-O-Loc does not have an explosive quality.
At the conclusion of all of the evidence, the trial judge concluded that the plaintiff had failed to maintain 'the burden of proof required in the action.' The trial judge stated:
'More specifically, it is the opinion of the Court that the plaintiff had failed to show that the explosion that caused injury to the plaintiff was caused by an explosion of natural gas. While there is a strong inference that natural gas was the cause of the explosion, yet it could have been caused by sewer gas or fumes from the solvent or Can-O-Loc used in the repair him. Current v. Columbia Gas of Kentucky,
We are unable to agree with the trial court concerning his reason for decision. Upon consideration of a motion for directed verdict, the plaintiff is entitled to the most favorable inferences and construction attributable to the evidence. If such evidence is so regarded and substantially tends to support the cause of action, the verdict should not be directed against him. Circuit v. Columbia Gas of Kentucky, Ky., 383 S.W.2d 139 (1964).
The plaintiff need not establish a case beyond a reasonable doubt. Although a jury may not be permitted to speculate when the probabilities of an event's having happened in one of two or more ways are equal and there is no evidence as to which way it did happen, it is neither legal 'speculation' nor 'conjecture' when a jury finds as a fact that an event happened by reason of a particular cause when the evidence on behalf of a party, if believed, is sufficient to show that it is more likely than not that the event occurred as a result of the cause so found. Miller v. Watts, Ky., 436 S.W.2d 515 (1969).
The plaintiff's evidence was circumstantial in the aspect of the gas that was smelled and the location of the break in the main. It was direct in the aspect of the testimony of the defendant's employee who traced the escaping gas to the...
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