Fonda v. Northwestern Public Service Co.
| Decision Date | 01 April 1938 |
| Docket Number | 30166 |
| Citation | 278 N.W. 836,134 Neb. 430 |
| Parties | JAMES EVERETT FONDA ET AL., APPELLANTS, v. NORTHWESTERN PUBLIC SERVICE COMPANY ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lincoln county: J. LEONARD TEWELL, JUDGE. Reversed.
REVERSED.
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.
2. 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.
3. An employee who, after installation and inspection of gas equipment, by the exercise of ordinary care should have known it was improper or defective is liable with his employer for injuries occasioned thereby.
4. When defendant moves for a directed verdict, he admits as true evidence of plaintiff, who is entitled to benefit of every reasonable inference deductible therefrom. Martin v Sanford, 129 Neb. 212, 261 N.W. 136, 100 A.L.R. 179.
5. When the evidence is such that reasonable minds might differ as to the cause of injuries for which damages are sought, the question is for the determination of the jury.
Appeal from District Court, Lincoln County; Tewell, Judge.
Action by Nellie L. Fonda against the Northwestern Public Service Company and its superintendent, Elmer H. Smith, for injuries from asphyxiation, allegedly caused by negligence of defendants in installation, inspection, and maintenance of a gas burner. From a judgment in favor of the defendants, the plaintiff appeals.
Judgment reversed, and cause remanded.
The defendant's motion for directed verdict admitted truth of plaintiff's evidence, and entitled plaintiff to every reasonable inference deducible therefrom.
R. H. Beatty and Shuman & Overcash, for appellants.
Hoagland, Carr & Hoagland and William Suhr, contra.
Heard before GOSS, C. J., ROSE, DAY, PAINE and MESSMORE, JJ., and FALLOON, District Judge.
This is an action for damages brought by Nellie L. Fonda against the defendant gas company and its superintendent, Elmer H. Smith. The plaintiff claimed injuries from asphyxiation caused by the negligence of the defendants in the installation, inspection and maintenance of a gas conversion burner in the heating plant of the plaintiff's home. The defendants admitted the purchase and installation, but claimed it was safe and proper, and that any injuries were caused by plaintiff's negligence. Plaintiff later died and the case was revived in name of her executors, and tried in the lower court. At conclusion of plaintiff's testimony, the trial court sustained motion to discharge jury and dismissed action at plaintiff's costs. Plaintiff appealed, and since one of defendants has died, action has been revived against his administratrix.
The evidence discloses that the defendant corporation was engaged in the installation and servicing of gas and heating equipment, and also in the selling, delivering and furnishing of natural gas therefor in North Platte, and that the other defendant was its superintendent and foreman in charge. The plaintiff, Nellie L. Fonda, and her husband, James H. Fonda, occupied their dwelling-house in North Platte and had lived there for many years. They were both past 70 years of age and in usual health for their age. Their home had been heated with a coal or other solid fuel furnace in August, 1932, and prior thereto. This furnace had a direct flue connection from the rear of combustion chamber running to the chimney, and below this connection another flue pipe connecting therewith, but which was only about half the length, and at the end of which a clean-out plug was placed, which before the furnace had been connected for gas usage was removable so the accumulated soot could be cleaned out when necessary.
During August, 1932, estimates were made by said defendants for the proper conversion of this Green Colonial furnace to natural gas, and after some conversation agreement was reached about September 10, 1932, and a Sonner Heat machine was installed and everything checked by the defendants and approved by the foreman defendant, Smith, on September 26, 1932. There is no doubt but the defendants installed and claimed that the equipment was proper and safe, and that the same was accepted by James H. Fonda, the owner of the home and the husband of the plaintiff, and a few days later was being operated. Nothing out of the ordinary happened until on Sunday, the 17th of December, 1933, when the servant maid, Edna Hall, occupied the home while the Fonda occupants were on a visit to Omaha, and she testified that in the nighttime she heard a noise or puff, as though something dropped on the basement floor. She called for Clarence Molley, a service employee of the defendant company; he came and she went with him to see what was the matter with the furnace. He opened the furnace front door, relit the pilot-light and left. She further testified that the house warmed up, but she later had a headache, pressing on her lungs, pictures on the wall seemed to dance around, felt she was going to faint, became sick to her stomach and nauseated. She further testified, when her father came to take her home, she was worse, delirious and hardly knew her father, and that she stayed in bed a day or so, had never had such sickness before, and that she only ate breakfast which usually consisted of coffee.
The testimony further reveals that the plaintiff, Nellie L. Fonda, and her husband returned from Omaha late Tuesday, December 19, 1933, and that a neighbor, Mrs. Elmer Koons, saw Mrs. Fonda when they returned. One of the keys to the Fonda house was left with the Koonses. Elmer Koons took the key over and gave it to Mr. Fonda, talked with him a few minutes and he seemed all right. The next day about dark, because of the receiver being off the telephone at the Fonda home, the telephone company called the Koons home and asked that they investigate. Mrs. Koons went over, could not get in, saw Mrs. Fonda staggering around, so went back and got Mr. Koons, and they unlocked the screen and went into the Fonda home. They found the Fondas in bad shape, clothes disheveled and scattered about, evidence of bowel movements, and neither able to give coherent accounts of themselves. A doctor was called, also the daughter, Mrs. Blanche Tarkington, and Mrs. Koons helped get things in order. Mrs. Koons further stated she was all right when she went over, but she got a headache, though she thought at the time it was the excitement. The daughter and her husband came that night and the Koonses returned to their own home. The daughter later became violently sick, vomited, went to bed, and her husband also had a terrible headache.
A nurse, Janice Ryan, who was called on the case about 10 o'clock the night of the 20th, became dizzy, had headache and was so nauseated that she was relieved by another nurse, and Miss Ryan remained in bed for a few days as a result of her experience.
A neighbor, Mrs. Fred Waltemath, having heard of the illness next door, called the next morning between 10 and 11 o'clock, found both Mr. and Mrs. Fonda groaning and gasping for breath, and also Mrs. Blanche Tarkington very sick, and also noticed the air in the house offensive. She was there later for a minute or two in the afternoon, then the air was not so bad, as windows and doors were open, but when she returned to her own home she called the gas company and told them she thought the trouble at the Fonda home must be gas, and she thought they should investigate, and that she later saw some of the gas people come almost immediately.
The record conclusively shows that all parties who occupied or visited this home about this time were more or less similarly affected. What the trouble was, or whether any one was negligent, it is necessary to look further for determination.
The plaintiff charged negligence to the defendants in the installation, and particularly in leaving the clean-out plug as it was. Let us see what the record discloses in this regard.
The defendant Elmer H. Smith testified that he was the gas distribution superintendent of the company, that he had examined the Fonda home as to proper installation of a gas conversion burner, later installed it, personally did some of the work, that the job was completed, that gas was turned on, that the company later inspected it at intervals, that the clean-out plug was not needed, that they did not fasten it, that it was pushed in a crimp joint, could be removed by hand with a little pressure and really had no purpose with gas installation, but it need not be fastened, just so it was in place tight. He also testified as to some changes being made as to checking the draft less than 30 days before the eventful night. He also testified as to the danger of the gases formed by the combustion of natural gas. There was also testimony as to certain features of the furnace that were of but little or no value.
The testimony of Clarence Molley, an employee of the defendant company, was to the effect that he went to the Fonda home the morning of December 17, found pilot-light out, doors closed relit pilot-light, electric controls all functioning, did not go behind furnace at all or look at clean-out plug as he was...
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