Hersum v. Kennebec Water Dist.

• Decision Date: 19 October 1955
• Parties: , 53 A.L.R.2d 1072 Harold D. HERSUM, Administrator of the Estate of Helen D. Hersum, v. KENNEBEC WATER DISTRICT. Harold D. HERSUM v. KENNEBEC WATER DISTRICT.
• Court: Maine Supreme Court

Page 334

117 A.2d 334

151 Me. 256, 53 A.L.R.2d 1072

Harold D. HERSUM, Administrator of the Estate of Helen D. Hersum, v. KENNEBEC WATER DISTRICT.

Harold D. HERSUM v. KENNEBEC WATER DISTRICT.

Supreme Judicial Court of Maine.

Oct. 19, 1955.

Perkins, Weeks & Hutchins, Waterville, for plaintiff.

Dubord & Dubord, Waterville, for defendant.

Before FELLOWS, C. J., and WILLIAMSON, BELIVEAU, TAPLEY, CLARKE and WEBBER, JJ.

WEBBER, Justice.

On exceptions to rulings of referees and to the acceptance of their report. Two cases are here considered together. In one the plaintiff as administrator of his daughter's estate was awarded damages under two counts, one for her conscious pain and suffering and the other for pecuniary loss to her heirs as the result of her death. In the other case plaintiff was awarded damages for the medical and hospital expenses incurred by him for his daughter and for the destruction of his home and furnishings. No issue is here raised as to the amount of damages.

The referees had before them evidence which would support the following findings of fact. The defendant, Kennebec Water District, is engaged in the business of supplying water in the City of Waterville by means of underground pipes, many of which are laid under existing streets. On April 16, 1953, the defendant had occasion to lay a new water main along Dalton Street upon its southerly side and in close proximity to defendant's old main. The defendant was aware that the Waterville Gas Company also maintains underground pipes as a part of its business of supplying gas. Before starting any excavation of the street, the defendant requested the gas company to furnish assistance by indicating the location of its concealed pipes. Two employees of the gas company went to Dalton Street to supply the requested information. The plaintiff's home was on the northerly side of Dalton Street. Almost directly across the street on the southerly side was the Millett home, which was adjoined on its westerly side by the Kennison home. The representatives of the gas company entered the cellars of the houses on the southerly side of Dalton Street and located the gas service entrances. According to their testimony, there was apparently doubt in their minds as to whether the Millett and Kennison houses were served by one entrance pipe or two, but they informed the defendant's employees that there was one gas service pipe into the Millett house, which they located, and that there might possibly be another pipe into the Kennison house.

The defendant employed one Donald Gurney to furnish a backhoe shovel with an operator. Mr. Gurney is in the sand, gravel and excavating business. Issue is raised as to whether Gurney's shovel operator acted in the role of independent contractor or became the agent and employee of the defendant. In any event, the defendant's own employees located the gas pipe leading to the Millett house and carefully dug around it by use of hand shovels. Thereafter the shovel operator continued machine excavating along the line of the water main, moving in a westerly direction in front of the Kennison house. At this point his shovel struck an obstruction in the ground. He immediately ceased excavation and reported the fact to defendant's foreman. One of the defendant's employees then dug around the object with a hand shovel and found it to be a pipe running across the excavated trench and about thirty inches below the surface of the street. Defendant's foreman then entered the trench, examined the pipe and, observing neither the smell of gas nor the presence of water, assumed that it was an abandoned pipe. The water main was eventually laid about two feet below the pipe which had been struck and after about six hours the trench was filled. The gas company was not notified by anyone that any pipe had been struck and had no knowledge thereof.

On June 27, 1953, the plaintiff's daughter entered the Hersum home early in the forenoon. About ten minutes later there occurred an extremely violent explosion in the Hersum house which was of such proportions and so damaging in its effect that the dwelling was subsequently razed to the ground. The neighbor, Mr. Millett, immediately ran to the scene and pulled Helen Hersum from the cellar through a large gap in the wall. She was conscious, although her hair and clothing were in flames. The referees permitted Mr. Millett to testify over objection that he took off his coat and smothered the flames and asked her what happened.

'Q. What was her answer? A. Her answer was 'I pulled the switch down cellar to turn on the hot water heater and the next thing I knew I was all aflame and found you coming toward me.'

'Q. At this point, Mr. Millett, were her clothes still aflame? A. Yes, and her hair.'

The girl was immediately taken to the hospital where she died within a few days as a result of her burns and injuries.

The rest of the Hersum family had been away for about two weeks prior to the date of the accident. The cellar windows were covered with both regular and storm sash. The house was heated by an oil burner located in the cellar which also furnished hot water. Before leaving home, Mr. Hersum had showed his daughter how to control the oil burner switch and had then left it set for manual control in an 'Off' position. Helen herself had been away visiting during most of the two week period, but had been in and out of the house on both of the two days before the accident.

The State Director of Fire Prevention was notified and arrived about two hours after the explosion, when he examined the building. He observed that the oil burner switch was in the 'On' position. He removed the oil burner, the switch, and the wiring, and had them examined and tested by the mechanical engineering department of the University of Maine, where they were found to be in good operating condition. In the afternoon of the same day an investigation was begun, which was continued and completed two days later, by people with special competence in testing for the presence of escaping gas. In this investigation an apparatus known as an 'explosion meter' was used for the purpose of detecting the presence of gas either in limited or explosive quantity. There was a gas service entering the Hersum house, but this had been completely shut off for a considerable period. All tests for leaking gas through or around the gas service were negative. In another part of the cellar, however, there was a hole or opening in the foundation wall on the level of the cellar floor where the water service pipe entered the house. Tests within this opening disclosed the presence of gas in explosive quantity. A test made under ground outside the foundation wall and opposite the opening likewise disclosed the presence of gas in explosive quantity. A series of underground tests disclosed the presence of gas under ground in explosive quantity in a line which, if projected, would run from the opening in the Hersum cellar toward the street along the approximate line of the water service pipe. The gas main runs along Dalton Street on its northerly side. Further tests disclosed the presence of gas in explosive quantity in the area of this gas main at a point about opposite the Kennison house. By careful hand digging at this point the gas main was exposed and it was found that at this location the gas main was entered by another pipe at right angles by means of a 'T' joint. Gas was leaking at this joint and there was present a crack or break in the thread of the feeder pipe which appeared to be fresh. The section of broken pipe is an exhibit. A new excavation was made over the water main in front of the Kennison house and a piece of pipe lying at right angles to the street was removed and is an exhibit. This piece of pipe, although not broken, discloses a substantially bent portion on which appears a shiny area such as might occur if there were fairly recent abrasions. Witnesses who observed the location of the broken joint with reference to the location of the bent pipe and the direction in which both pipes pointed as they lay in the ground testified that each pipe was an extension of the other or, in substance and effect, that both pieces were portions of one pipe which was laid across the street to connect with the gas main.

The gas which was being supplied was propane gas. This gas is odorless. When mixed with proper proportions of air, it is highly explosive. With reference to the proportions of gas and air required to render the mixture explosive there are both low limits and high limits. It is therefore manifestly highly dangerous and hazardous and must be handled and treated with great care and caution. To minimize the danger resulting from the odorless quality of the gas in its pure state and in order to supply a warning of its presence, it is common practice for commercial suppliers to mix with it what is known as ethyl mercaptan, which has an odor which is likened to that of rotten cabbage. This odorant is added in the proportion of one pound to nine or ten thousand gallons of propane gas. Propane is classed chemically as an inert substance and is quite unreactive. Ethyl mercaptan is of an acidic nature and more reactive. Ethyl mercaptan would be adsorbed by other substances with which it might come in contact far more quickly than would propane. The effect of such adsorption of ethyl mercaptan out of its combination with propane would be to diminish the warning odor. Such adsorption might occur if the combined propane and ethyl mercaptan were passing through the soil. Friends of Helen Hersum who were present with her in the cellar of her home on each of the two days immediately preceeding the accident testified that there was no odor in the cellar. Neither was there any odor in the cellar when the investigation was being conducted nor even in the area in proximity to the opening in the foundation wall where gas was present in explosive...