Fort Smith Gas Co. v. Cloud

• Decision Date: 04 February 1935
• Docket Number: No. 9987.,9987.
• Citation: 75 F.2d 413,97 ALR 833
• Parties: FORT SMITH GAS CO. v. CLOUD.
• Court: U.S. Court of Appeals — Eighth Circuit

97 ALR 833, 75 F.2d 413 (1935)

FORT SMITH GAS CO. v. CLOUD.

No. 9987.

Circuit Court of Appeals, Eighth Circuit.

February 4, 1935.

Fred S. Armstrong and Vincent M. Miles, both of Fort Smith, Ark. (Miles, Armstrong & Young, of Fort Smith, Ark., on the brief), for appellant.

John P. Roberts, of Fort Smith, Ark., for appellee.

Before STONE, GARDNER, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an action to recover damages for personal injuries alleged to have been suffered by appellee on account of the negligent delay of the appellant in installing a gas meter with proper connections at a house about to be occupied by appellee and his family in Van Buren, Ark. The parties will be referred to as they appeared below.

Defendant is a public utility, engaged in the sale and distribution of natural gas in the cities of Fort Smith and Van Buren, Ark. Plaintiff secured judgment, and defendant has appealed, alleging that the court erred in denying its motion for a directed verdict, and in overruling its objections to the testimony of certain expert witnesses.

Van Buren is located on one side of the Arkansas river, directly opposite the city of Fort Smith, and they are approximately 3 miles apart. The defendant maintains offices in each of these cities. Plaintiff had for a number of years been a resident of Fort Smith, but on the afternoon of February 7, 1933, he had his household effects moved to Van Buren and there placed in a vacant house in which he intended to live. He testified, and, in considering the ruling of the court in denying defendant's motion for a directed verdict, we must accept this testimony as true, that on the evening of the 7th, he called at the office of the defendant in Van Buren, for the purpose of ascertaining how early the gas could be turned on in the house to which he was moving, and was then advised that it could be turned on "immediately after work hours after your deposit is made." On the morning of the 8th, plaintiff, having remained overnight with his son-in-law in Fort Smith, went with his son-in-law to the office of the defendant at Fort Smith, arriving there about 8 o'clock, to see if his meter deposit had been transferred from the Fort Smith office to the Van Buren office of the company. Finding that it had not been so transferred, he went to the shop where his son-in-law was working, borrowed the money from him, boarded a street car and rode to Van Buren, where he went to the office of the defendant and made the required meter deposit. It is not definitely shown when he arrived at the defendant's office in Van Buren and made his deposit. The office girl in the office of defendant at Van Buren testified that he arrived at the office between 9 and 10:30 a. m. Plaintiff testified that this office girl told him that, "They will be right out immediately and turn the gas on."

Plaintiff then went to the house in Van Buren to which he was moving, and did some work in connecting up the heaters. His wife and family arrived between 11 and 12, and he then went to the telephone and called the office of the defendant. He then returned to the house and waited until 2 or 3 o'clock in the afternoon, at which time he again went to the telephone and called the defendant's office, and was assured that some one would be out to install the meter. Defendant's mechanic came with the meter about 4 o'clock p. m., and made the necessary connections and installation.

The wife and children of plaintiff went to a neighboring house about 150 feet distant from the house in question, where they were comfortable, but plaintiff remained in and about the unheated house, except for the times he went to make the telephone calls, until the mechanic arrived. It was zero weather, and for a while plaintiff maintained a fire in the yard, burning up a lot of paper and débris. He was normally dressed, and wore an overcoat.

Following the installation of the meter, plaintiff and his family arranged the furniture in the house, and some time that night plaintiff had a chill. He did not remain in bed the next day, but worked at his usual occupation, and he did not call a doctor for several days. He was taken sick with pneumonia and confined to his bed for six weeks. There was considerable medical testimony from which it conclusively appears that plaintiff is tubercular and had been afflicted with tuberculosis before he was exposed in the cold house, and before he took pneumonia. One doctor called as a witness for plaintiff testified that he visited plaintiff professionally on the 16th and 21st of February, and that "it occurred to me that he might have tuberculosis, judging from the condition of the man's body and his makeup and apparently run down condition. The condition I found him in would not have been caused by pneumonia." There was testimony elicited from plaintiff's own witnesses to the effect that if plaintiff had, on the 8th of February, ridden on a warm street car from the city of Fort Smith to the city of Van Buren, and had gone out in the cold air, and had during the day been in a warm room in a house about three times for the purpose of telephoning, and had on such occasions gone out in the cold air, the exposure caused thereby might have produced the pneumonia; that going from a warm room out in the cold air would tend to cause pneumonia just as much as standing out in the cold air. The same witness testified: "I am sure that Mr. Cloud had tuberculosis infection, for pneumonia cannot cause tuberculosis."

The only evidence introduced by plaintiff to establish negligence was that while the meter was ordered installed some time between 9 and 11 o'clock a. m. on the 8th of February, the temperature being around zero, it was not installed until 4 p. m. on that date.

On behalf of the defendant, it was shown without dispute that on that date, owing to the extremely cold weather, there were a number of emergency calls from its regular customers. The local manager was the only mechanic in charge of the system at Van Buren, and he testified that he received a call about 8:30 in the morning to see about a customer who was out of gas because of a frozen regulator. Concerning this, he testified: "I had to go out and thaw out the regulator and see that the gas stayed on, because of a case of sickness in the house." He then went to another customer's house who had the same trouble. A third customer came to him with a complaint that he was out of gas, and the witness went to this third place to serve the emergency call. Concerning these three calls, he testified: "I had to spend some time at each place because of the nature of the equipment. I didn't want it to freeze and stick again, and have to make a second trip back to it." He was then called to a restaurant in answer to an emergency call. He was later notified of a leak in the gas lines on...