Frye v. McCrory Stores Corp., 10954

• Decision Date: 03 March 1959
• Docket Number: No. 10954,10954
• Citation: 107 S.E.2d 378,144 W.Va. 123
• Parties: Nancy FRYE v. McCRORY STORES CORPORATION et al.
• Court: West Virginia Supreme Court

Page 378

107 S.E.2d 378

144 W.Va. 123

Nancy FRYE v. McCRORY STORES CORPORATION et al.

No. 10954.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 20, 1959.

Decided March 3, 1959.

Syllabus by the Court

1. The maintaining of a vault under a public sidewalk of a municipality, by authority of law, does not constitute a nuisance per se.

2. The use of a vault under a public sidewalk in a municipality, by authority of

law, for the purpose of maintaining therein electrical or other appliances used in connection with the furnishing of a public service, does not constitute a nuisance per se.

3. In a proceeding wherein the plaintiff by proof establishes facts giving rise to an inference of negligence by application of the res ipsa loquitur doctrine, and also proves the specific acts of negligence relied on, the inference becomes immaterial in determining the existence of negligence.

4. An electric company furnishing electricity to the public, and maintaining safety devices or appliances in connection therewith, is required to use and maintain only such appliances as are customarily used by the industry and have proved satisfactory for the purposes intended, not the most modern or the very best or safest appliances.

5. 'Those who operate and maintain wires charged with dangerous voltage of electricity are required to exercise a degree of care commensurate with the dangers to be reasonably apprehended therefrom; but they are not insurers against all injury therefrom.' Point 1, Syllabus, Maggard v. Appalachian Electric Power Company, 111 W.Va. 470 .

6. 'Where separate and distinct negligent acts of two or more persons continue unbroken to the instant of an injury, contributing directly and immediately thereto and constituting the efficient cause thereof, such acts constitute the sole proximate cause of the injury.' Point 1, Syllabus, Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739 .

7. 'One who has committed a breach of duty is liable for its natural and proximate effects, which may be immediate or through the subsequent media of natural forces or other innocent causes.' Point 1, Syllabus, Mills v. Indemnity Insurance Company of North America, 114 W.Va. 263 .

R. W. Barnes, Pinsky & Mahan, Wellsburg, McCamic & Tinker, Wheeling, for plaintiff in error.

Schmidt, Hugus, Laas & Schrader, Handlan, Garden, Matthews & Hess, Thomas B. Miller, George G. Bailey, Wheeling, for defendants in error.

GIVEN, President.

Plaintiff, Nancy Frye, instituted her action of trespass on the case, in the Circuit Court of Ohio County, against McCrory Stores, Wheeling Electric Company, the City of Wheeling, Jenevieve M. Taylor and William M. Sheff, for recovery of damages for personal injuries suffered by her as a result of an explosion alleged to have been caused by negligence of defendants. Before the case was submitted to the jury the trial court dismissed from the case all of defendants except the City of Wheeling, and limited questions of liability of the city to its operations in a proprietary capacity, as the operator of a water supply system. The jury returned a verdict in favor of the city, and the trial court refused to set the verdict aside. This Court granted a writ of error to the plaintiff.

On January 3, 1956, about 1:45 P.M., plaintiff, while walking on the sidewalk in front of the McCrory store, on Market Street in the City of Wheeling, suffered injuries from an explosion which originated in an underground room or vault, located partly under the sidewalk and partly under the McCrory store. The vault was approximately 10 feet by 14 feet, the ceiling thereof being approximately 8 feet, 8 inches high. The four walls were of solid masonry construction, but cracks or joint openings extended through the wall along and next to Market Street. The only access to the inside of the vault was through steel doors, installed in the sidewalk 'flat and parted in the middle'. A ventilator approximately one foot, five inches square was installed in the wall between the vault and the basement storeroom of the McCrory store, about one foot from the floor of the vault. No water drain was installed in the vault. The vault had existed in its then condition since about 1936, when extensive repairs or remodeling of the building housing the McCrory store was completed.

About the time of the remodeling, the water service line to the McCrory store, consisting of a lead pipe approximately one inch in diameter, extending from the main water line, near the center of Market Street, into or through the space within the vault, was abandoned and a line of steel pipe, about three inches in diameter, was substituted. Near the point where the lead service pipe connected to the water main, a shutoff valve was installed. Another shutoff valve was installed on the lead service pipe some few feet before it entered the wall of the vault. Within the vault, apparently near the wall thereof located under the sidewalk, the lead service pipe was severed and 'capped'. There appears to be no question that the lead service pipe was capped, and the shutoff valve nearest the vault closed about the time of the remodeling and the substitution of the three inch service line. After the explosion it was determined that the shutoff valve nearest the water main was open, that the lead service pipe, a few feet from the wall of the vault, had become so weakened, perhaps by the force of electrolysis, that the pressure of the water within it caused a leak, thus permitting water under pressure from the main line to flow through the open shutoff valve, the abandoned lead service line, and into the vault, in considerable quantities, and, it is contended, onto the electrical installations within the vault. A pertinent provision of an ordinance of the City of Wheeling, in effect at the time material, provided that 'Where it may be necessary to connect to the City's main pipe for any purpose (indicating repairs) the employes of the water works shall alone turn the valves on the main pipe, and they only shall make the opening in the main and insert the tee, spud or ferrule * * *'. Provisions of another applicable ordinance provided that 'Service connections will be made to improved property only and upon written application signed by the property owner or his duly authorized agent, except where new paving and similar conditions may require the laying of services in advance. The City will tap the main, insert corporation cock, carry service pipe to curb, insert a curb cock and curb box for each consumer; all of which shall be and remain the property of the City and will be maintained by the City.'

About the time of the remodeling, at the request of the defendant McCrory Stores for an additional supply of electricity, the Wheeling Electric Company, operating under a general franchise with the City of Wheeling, and after obtaining a permit from the city, constructed an underground electric conduit from the base of the pole carrying its primary line, a short distance from the McCrory store, to transformers in the vault. Apparently the permit made no mention of any installations within the vault. In connection with the installations and the furnishing of electric services, the electric company also installed within the vault three transformers of 2300 volt capacity each. Apparently the cables extending from the primary line to the transformers carried 6900 volts of electricity. An oil circuit breaker, sometimes referred to as an oil switch, was also installed in the vault. The oil breaker was a 'safety device' and the 'function of that is to protect the vault. If a fault occurs affecting the vault, the practical reason, that thing is open--particularly on short circuit'. In other words, if a short occurred on the line, 'between the store and the circuit breaker on the store side', the 'oil switch' would be thrown out 'automatically'. But the circuit breaker 'was no protection for the vault or anything on the line side of the circuit breaker'. The capacity of the oil container of the circuit breaker was approximately four gallons, and the 'oil serves as an insulating and cooling means for the switch'. The type of oil breaker installed in the vault was not of the water proof or submersible type, but was of general use throughout the industry, and had operated satisfactorily from the time of its installation until the explosion.

There is evidence in the record to the effect that 'standard operating procedure in the installation of service of that type, from a pole, would be to fuse the service where it goes off the main at a pole'; that there were no 'fuses or cut-outs or any similar appliances' at the pole, or at any other point between the electrical substation and the vault, 'on the circuit to McCrory's store'. William J. Stewart, an experienced electrical engineer and assistant manager of the Wheeling Electric Company at the time of the explosion, was asked: 'In other words, Mr. Stewart, on this circuit which we have talked about there is no fuse protection between the line side of that switch and the switch at your 15th Street substation? In other words, you have a direct wire with no fuses that could blow from an overload until you go clear back to your main switch and that switch comes in automatically in ten seconds?' He answered: 'That is correct'. The evidence further indicates that had there been proper fusing at the pole or at some point before the circuits reached the transformers, electricity could not have again energized the circuits after the lights went off until the difficulty had been corrected. Since the jury was not permitted to consider any question as to the negligence of the Wheeling Electric Company, we need not detail the evidence which might be considered in conflict with that of plaintiff relating to the fusing of the circuits leading from the primary line to the transformers in the vault, that evidence not being conclusive as to the...