Fonda v. Northwestern Public Service Co.
| Decision Date | 14 June 1940 |
| Docket Number | 30811. |
| Citation | 292 N.W. 712,138 Neb. 262 |
| Parties | FONDA ET AL. v. NORTHWESTERN PUBLIC SERVICE CO. ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. " When a gas company engages in the distribution of natural gas and the installation and inspection of its equipment, it is incumbent on such company to exercise the high degree of care and diligence required in the handling of a dangerous commodity, and, if negligent, it is liable therefor." Fonda v. Northwestern Public Service Co., 134 Neb. 430, 278 N.W. 836, 838.
2. A gas company is required by law to maintain an efficient system of inspection and superintendence and must use due and reasonable care in the inspection of its pipes, burners and gas equipment to insure reasonable promptness in the discovery of leaks that may occur from defects therein.
3. " Liability for injuries caused by escaping gas does not depend on notice of defect, where defect is due to improper or careless installation and inspection." Fonda v Northwestern Public Service Co., 134 Neb. 430, 278 N.W 836, 838.
4. " A plaintiff is not bound to exclude the possibility that the accident might have happened in some other way, but is only required to satisfy the jury, by a fair preponderance of the evidence, that the injury occurred in the manner claimed." Tonkovitch v. Indiana Mining Co., 187 Mich. 186, 153 N.W. 811.
5. Day v. Metropolitan Utilities District, 115 Neb. 711, 214 N.W. 647, 216 N.W 556.
6. Where an employee, an expert and superintendent of installation of gas equipment, is charged jointly with his employer with negligent installation and inspection of gas burner and equipment, and upon trial of the case the employee is released, such verdict, exonerating the employee, does not relieve the master, the employer, where the acts resulting in the injury complained of were committed under the express command of the master, and where other employees, taking part in the installation and various inspections of the gas burner and equipment, were negligent in such respects and not parties to the action.
7. Medical authorities are not admissible in evidence as independent evidence of statements therein expressed, but may be used, upon cross-examination, within reasonable limits, which is a matter largely in the court's discretion, in order to test the knowledge and accuracy of a witness who testifies as to his opinion on scientific questions involved in his profession, where the inquiry is directed to the extent of his knowledge and his familiarity with the accredited standard authorities of his profession upon the subject about which he has testified.
8. Where the evidence fails to disclose that the decedent died from the effects of carbon-monoxide gas poisoning, funeral expenses are not allowable, but the inclusion thereof in an instruction on the measure of damages, where the evidence shows that the decedent was suffering from the effects of carbon-monoxide poisoning at the time of her death, is not prejudicial.
9. When instructions given, considered in their entirety, fairly and adequately state the law, they are sufficient.
Appeal from District Court, Lincoln County; Nisley, Judge.
Action by Nellie L. Fonda against the Northwestern Public Service Company and Edith Smith, administratrix of the estate of Elmer H. Smith, deceased, for injuries alleged to be due to carbon monoxide asphyxiation. James Everett Fonda and Blanche Fonda Tarkington, executors of the estate of Nellie L. Fonda, deceased, were substituted plaintiffs. From an adverse judgment, the Northwestern Public Service Company appeals.
Affirmed on condition of remittitur.
Hoagland, Carr & Hoagland, of North Platte, Wm. Suhr, of Grand Island, and Dana Van Dusen, of Omaha, for appellant.
Shuman & Overcash and Beatty, Maupin, Murphy & Davis, all of North Platte, for appellees.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ.
Nellie L. Fonda during her lifetime brought this action against the defendant corporation and its superintendent in charge of installation, inspection and distribution of its natural gas service for alleged injuries, claimed to be due to carbonmonoxide asphyxiation, on December 19, 1933, from a convertible gas burner, placed in a Green Colonial furnace, ordinarily used for burning solid fuels, and owned by James H. Fonda and his wife Nellie. The case proceeded in the name of the executors of her estate. The jury returned a verdict for the plaintiffs in the amount of $5,000 and dismissed the action as to the defendant superintendent. Defendant Northwestern Public Service Company appeals.
Plaintiffs' amended petition alleged facts constituting negligence on the defendants' part in the installation of the gas burner, in failing to strap the clean-out plug at the time of the installation in 1932, and in failing to properly and thoroughly inspect the furnace on December 17, 1933. Defendants' answer contained a general denial and, in addition, alleged the purchase by the Fondas of the convertible gas burner in September, 1932; that the installation was made in a safe, workmanlike manner, in accordance with the standard rules of installation of Sonner burners, and, when completed, was satisfactory and ready for use; and alleged contributory negligence. The reply was a general denial.
The evidence discloses: The defendant public utility corporation was engaged in the installation and servicing of gas and heating equipment and selling, delivering and furnishing of natural gas. Elmer H. Smith was its superintendent in charge. James H. Fonda, a retired railway engineer, and his wife, aged 75 and 74 years, respectively, lived in North Platte for many years. Mr. Fonda investigated the cost of installation of a gas burner in his home. Pursuant to an agreement, on September 10, 1932, a Sonner heating machine was installed in the Green Colonial furnace owned by the Fondas. The installation was checked and approved by the superintendent September 26, 1932, and accepted.
On December 17, 1933, Edna Hall, employed as a maid in the Fonda home from August, 1933, until December 17, 1933, and in charge of the home at the time, during the absence of the Fondas who were visiting in Omaha, was awakened by a noise which she described as sort of a puff, as if " something had dropped on the floor; " the noise " was louder than usual, it sounded more like the back-fire of a car," as if a " lid had dropped on the floor," and the house became cold. She called on the telephone for Clarence Molley, who was and had been for ten years a service employee of the defendant company, in the capacity of " trouble shooter" or utility man; talked to Mrs. Molley, telling her she felt there was something wrong with the furnace. Mr. Molley came to the house about 11 o'clock the same morn ing, and the maid told him she thought the burner was out. They both went to the basement. Molley opened the front door of the furnace, looked into it, found the pilot light out, the burner not operating; he started the pilot light, adjusted the valves, and looked at the thermostat. The maid was unacquainted with the operation of the furnace. She did not see Molley go around to the back of the furnace. Molley testified that after finding the pilot light out he closed the main gas valve and closed the pilot valve and the main burner valve; then waited for the furnace to air out, to be sure no gas would escape from the pilot light; turned the valves on again and started the pilot light. He discovered nothing wrong with the part of the equipment which he inspected; he did not go around behind the furnace, where the clean-out plug was located; he knew it was there; he participated in the installation of the burner; he was in the house between 20 and 30 minutes. Upon leaving he informed the maid that if the house did not warm up for her to call him. His conception of her statement to him is that the house was cold and she did not think the furnace was burning. She subsequently called and talked to Mrs. Molley on the telephone and told her the house was warming up. She noticed about noon that she was developing a headache and, while lying down reading, did become faint, nauseated and dizzy, and felt as if something heavy was pushing against her heart and lungs. She then called a friend, who came over and remained in the house with her until about 4 o'clock. Dr. Fetter was called and administered a sedative to the maid. The doctor testified that she had some symptoms of gas, and he went on the assumption that it was probably gas because they had trouble with the furnace. He advised them to get in touch with the gas men to see about it, placed the maid in a room, opened the windows and left. He thought she was subjected to some monoxide gas. She did not mention to the doctor that there was gas in the house; nor did she report to Mr. and Mrs. Fonda that she became ill from its effects. She was taken home by her father, was ill in bed, up and down, for several days, and did not return to work at the Fonda home. When she left, the house was locked, remained closed and the furnace operating. The key to the house was given to neighbors by the name of Koons, living across the street.
On December 19, 1933, Mrs. Koons saw Mrs. Fonda when the Fondas returned home, and Mr. Koons delivered the key to Mr. Fonda and talked to him for a few moments. The next day the telephone company discovered that the receiver at the Fonda home was down and called the Koons home, requesting them to make an investigation. Mrs. Koons...
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