Helm v. Manufacturers' Light & Heat Co.

• Decision Date: 14 September 1920
• Docket Number: 4031.
• Citation: 104 S.E. 59,86 W.Va. 628
• Parties: HELM ET AL. v. MANUFACTURERS' LIGHT & HEAT CO.
• Court: West Virginia Supreme Court

104 S.E. 59

86 W.Va. 628

HELM ET AL. v. MANUFACTURERS' LIGHT & HEAT CO.

No. 4031.

Supreme Court of Appeals of West Virginia.

September 14, 1920

Submitted September 7, 1920.

Syllabus by the Court.

Though equality of probability of actionable negligence on the part of both plaintiff and defendant, disclosed by the evidence in an action for a personal injury, bars right of recovery, the jury may properly give force and effect to facts and circumstances tending to emphasize and sustain the theory of the plaintiff and impair and weaken that of the defendant and so conclude that there is a preponderance of evidence in favor of the former. Mere probability that the injury was caused by plaintiff's negligence does not preclude right of recovery, if there is a stronger probability of actionable negligence on the part of the defendant.

Upon their common knowledge of the nature and tendencies of natural gas and air, a jury may properly find that gas escaping from a pipe situated a few inches from a wall in which there are crevices and apertures, and in the open air, found its way through the crevices into a cellar back of the wall, and, accumulating there, occasioned an explosion on the striking of a match at an inside cellar door. (Lynch, J., dissenting.)

The duty of proper installation, maintenance, and inspection of a meter furnished, owned, and exclusively controlled by a public service corporation engaged in supplying natural gas and also of the fittings by which it is attached to the service pipe, rests upon the corporation, and negligence consisting of omission of such duty and causing injury imposes liability upon it.

But the duty of maintenance, inspection, and repair of the service pipe installed by the consumer rests upon him, and, if he permits it to become so dislocated, after attachment of the meter, as to cause a fracture of a meter fitting, resulting in an escape of gas, unknown to the corporation and causing injury to the consumer, the latter cannot recover, even though the corporation had knowledge of the injurious tendency of the dislocation of the service pipe.

An instruction given in general terms should not be broad enough literally to include subjects or objects other than the one in respect of which there is evidence tending to prove a cause of action. If in an action of the kind here indicated the evidence of negligence pertains only to the meter and its fittings, an instruction for the plaintiff should not extend to nor include the defendant's pipe lines.

Error to Circuit Court, Brooke County.

Action by Florence Helm and others against the Manufacturers' Light & Heat Company. Judgment for plaintiffs, and defendant brings error. Reversed, verdict set aside, and case remanded for new trial.

Erskine, Palmer & Curl, of Wheeling, for plaintiff in error.

Ramsay & Wilkin and W. M. Werkman, all of Wellsburg, for defendants in error.

POFFENBARGER J.

The judgment for $3,500 under review on this writ of error was recovered in an action for damages for a personal injury alleged to have been caused by the negligence of the defendant, a corporation supplying natural gas for light and fuel, in respect of its gas mains, pipes, and meter. A wife sues for the injury, her husband joining her in the action. The specific assignments of error challenge the sufficiency of the evidence to sustain the verdict and the correctness of a certain instruction given at the instance of the plaintiffs.

In the second count of the declaration and the evidence, the charge of negligence is limited to alleged defectiveness of the meter connections and conduct of the defendant respecting the same. The theory of the plaintiffs is that, by reason of the sliding of the ground over which the meter stood and an accumulation of ice on the meter, a connection between it and the service pipe, called in some places a union and in others a brass or bronze nipple, broke and permitted an escape of gas, which found its way into the building in which the plaintiffs resided, and, being accidentally ignited by a match struck by the female plaintiff, caused an explosion, in which she was knocked down and severely burned, notably about the head, arms, and chest. The house, a one-story three-room, frame structure, had a kitchen and cellar under a portion of it, made by an excavation in a hillside and inclosed by a hollow tile wall, which, conforming to the horizontal dimensions of the house, constituted its foundation. The explosion occurred in the cellar and kitchen, and the gas or other explosive substance seems to have been in the former. At about 5:30 a. m. February 9, 1918, something like a half an hour after the husband had come down into the kitchen and refreshed the coal fire with a bucket of coal procured from the cellar and lit a lamp, and almost immediately after the wife came down, the latter opened the cellar door and struck a match on or about it, intending to enter the cellar for some meat, and the explosion occurred. She was rendered unconscious, her clothing set on fire, and gas pipes broken inside of the building from which gas escaped and was ignited by her burning clothing. For some reason there were two explosions in close succession. As soon as possible, the husband went to the meter and shut off the gas. The flames were extinguished and the gas pipe connections restored by neighbors.

In this work of restoration, evidence of the cause of the explosion, relied upon by both plaintiffs and defendant, was discovered; a broken connection in the cellar made one of the principal grounds of the defense and a broken connection at the meter, relied upon by the plaintiffs, in connection with other facts, as proof of negligence on the part of the defendant. If the break in the cellar occurred before the explosion, the gas causing the injury, no doubt, accumulated there in consequence, and, as the defendant was not responsible for the safety or maintenance of that pipe, it admittedly would not be liable under the circumstances. On the other hand, as it owned, controlled, and had placed the meter, there may be liability, if the accumulated gas came from the break found in the meter connection. The meter was disturbed by the explosion, and it is insisted that the break in that connection was a result, not a cause, of the accident.

Claiming that, if either break antedated and caused it, the probabilities as to which of them did so are equal, the defendant invokes the well-settled legal proposition that, in such a case, a verdict against the defendant cannot be permitted to stand, because the plaintiff, carrying the burden of proof and being bound to make out ...