Hunt v. Laclede Gas Co., 51279

• Decision Date: 11 July 1966
• Docket Number: No. 1,No. 51279,51279,1
• Citation: 406 S.W.2d 33
• Parties: James HUNT, Appellant, v. LACLEDE GAS COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 33

406 S.W.2d 33

James HUNT, Appellant, v. LACLEDE GAS COMPANY, a Corporation, Respondent.

No. 51279.

Supreme Court of Missouri, Division No. 1.

July 11, 1966.

Motion for Rehearing or for Transfer to Court En Banc Denied

Sept. 12, 1966.

James P. Hayes, Hayes & Hayes, St. Louis, William L. Mason, Jr., Galena, for appellant.

M. E. Stokes, F. Douglas O'Leary, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.

HOUSER, Commissioner.

A trial jury awarded James Hunt $60,000 in his action against Laclede Gas Company for damages for personal injuries sustained when an explosion of gas enveloped him in fire while sealing a joint inside a newly installed 5-foot sewer pipe. Laclede's post-trial motion for judgment in accordance with its motions for a directed verdict was sustained. Plaintiff has appealed, claiming that he made a case for the jury on both theories submitted--Laclede's failure to control its gas mains and pipes and its failure to warn plaintiff of the accumulation of gas.

Plaintiff was an employee of Bangert Brothers, a road construction firm which had a contract with State Highway Commission to widen Olive Street Road in St. Louis County. The work involved cutting a trench 8 to 10 feet wide and 10 to 16 feet deep and laying a 60-inch in diameter concrete sewer pipe designed to carry surface water. The trench was cut by Bangert employees, operating a Bangertowned trenching machine known as a back hoe. Sections of concrete pipe 7 1/2 feet in length would be lowered by machinery into the trench and the Bangert sewer crew, including plaintiff, would fit together the ends of the sections and seal the joints from the inside with a nonflammable compound known as Sewertite. As sections were installed they would be covered with sand, gravel and dirt by back-filling machinery. This was a continuing operation, progressing from west to east. A 2-inch gas main owned, operated and maintained by Laclede, buried 2 or 3 feet below the surface of the ground, ran roughly parallel to the pavement on the north side of the 7700 block of Olive Street Road, an eastwest trafficway. The south edge of the trench was cut 2 or 3 feet north of the gas main. Six 3/4-inch steel service lines ran from the 2-inch gas main to the premises of gas users located on the north side of the road. These service lines crossed the line of progress of the trench. The location of the underground gas mains, including service lines, water mains and underground electrical conduits, was shown on utility sheets supplied by the highway department, which were included in the plan of the project. Stakes and 2-foot stabs bearing the word GAS painted in red were driven into the ground to indicate the location of the service lines. Moving or changing the gas lines to accommodate construction was Laclede's function; Bangert had nothing to do with their relocation. On the date of the accident and for some time prior thereto employees of Laclede were working on this Olive Street job. Laclede's employees would go ahead of Bangert's crew up and down the road and 'open' or dig out the gas lines, plug or cut off the gas being supplied to a particular address and change or relocate the lines, all as needed in connection with the cutting of the trench and the installation of the water pipeline. After the sewer pipe was installed Laclede would reconnect the service line. Laclede does this when gas lines are in the path of construction and obstruct the work. The gas in a service line having a curb cock can be cut off by the simple mechanical procedure of closing the cock with a key. If there was no curb cock Laclede would take the cap off the tap hole and put a pin in the tap hole.

On the day in question Bangert's workmen commenced at the east end of the lot at number 7733 Olive Street Road and worked east in front of two residences located at 7721 and 7719. At the latter address Bangert employees encountered a tree stump, an obstruction that had to be dug out. Laclede employees were near the excavation and in the vicinity of the stump about 30 minutes before the explosion occurred. The whole operation of attempting to remove the stump, however, was done by Bangert employees; Laclede personnel were not present. There is no evidence that Laclede employees were informed or consulted with reference to the removal of the stump. There is no evidence that Bangert requested Laclede to shut off the flow of gas in the main west of the stump. Bangert employees, while digging around and prying on the stump, severed a Laclede gas pipe which was either a 2-inch main or a service line. A hissing noise (escaping gas) was heard. Bangert's assistant superintendent, Mr. Rauh, was present. When the pipe was severed Mr. Rauh went looking for Laclede personnel to report the break in the gas pipe. The break was reported to Laclede's office by telephone. A leak crew was immediately dispatched to the scene by mobile radio. A second leak crew in the general vicinity heard the broadcast and responded to the call. There is nothing to indicate how long after the break occurred the leak crews arrived at the scene. Mr. Rauh told the Laclede people that the gas line was broken and went with them to point out the break. Plaintiff was working alone inside the 5-foot sewer pipe at the bottom of the trench, 20 feet or more from the stump, at the time the gas line was severed. He was applying sealing compound to the last joint, 7 or 8 feet from the open end of the pipe. In his position he was not visible to persons on ground level. Neither plaintiff's superior, Mr. Rauh, nor any employee of Laclede knew that plaintiff was working there. There was a solid bank of earth between plaintiff and the stump. Several feet of unexcavated earth separated the east end of the trench from the site of the stump farther east. Plaintiff did not know that the gas line had been severed. No one warned him to leave the area. Although Mr. Rauh testified that he heard no order to clear the area and no warning to get people away from the broken pipe where the gas was escaping, it is conceded on this appeal that after Laclede's leak crew arrived at the scene and saw the situation and heard the gas escaping from the broken main, one of the men in charge of Laclede's crew said to Bangert's foreman that he had better get their folks or people, or the men, 'out of here,' 'out of the vicinity or area.' Plaintiff, who was working 7 or 8 feet inside the pipe, smelled gas. Just as he smelled gas he heard a noise he described as sounding like 'Whoo'; described by another as 'a small rumble.' The whole pipe 'from one end to the other' was completely filled with fire 'just like sitting in a furnace.' Plaintiff was severely burned. The explosion occurred 5 to 7 minutes after the Laclede crews arrived on the scene. Plaintiff had not previously smelled gas on the job.

There were no manual valves in the area by which the flow of gas in the main could have been stopped prior to the removal of the stump. It is not difficult to install such a valve. Such a value, if in existence, could have been readily closed. Closing the valve in a main line would have effected an 'outage' or interruption of service to all customers between the valve and the end of the line. To stop the flow of gas on a temporary basis, in case of a clean break in the main, a 'climax plug' is inserted in the open end. The insertion of a climax plug is a time-consuming operation. There was no time to stop the flow of gas with a climax plug after the main was broken. Methods of effecting a permanent stoppage include placing a valve in the line, or a stopper tee. Where there is a rough break or a flattening or twisting of the pipe a cut is made back where the pipe is round. It takes 1 1/2 hours to insert a stopper tee.

Plaintiff's petition charged that Laclede negligently and carelessly permitted and allowed gas to escape from its main 'by reason of the dangerous and defective condition' of its gas main. Plaintiff's verdict-directing Instruction No. 1 submitted breach of a duty on Laclede to exercise a high degree of care to prevent the escape of gas from its mains by negligently failing 'to control' its gas mains and pipes. The submission was general. It did not specify in what manner Laclede failed to 'control' its gas mains and pipes. Plaintiff does not contend that Laclede improperly constructed or maintained its underground mains and pipes, or that they had deteriorated and become rusty or otherwise incapable of containing the gas because of structural defects; or that Laclede was negligent in failing to turn off the gas or to repair after the main was broken. It is conceded that Laclede could not have done the latter; there was not sufficient time. Plaintiff in his brief and oral argument relies solely upon Laclede's failure to take preventive steps before the gas main was broken, not upon failure to take curative action thereafter. Plaintiff claims on this appeal that Laclede should have turned off the gas at some point west of the stump before Bangert's employees commenced to remove the stump; specifically, that Laclede should have controlled its gas 'by shutting off the gas to and in such mains and pipes before such stump was * * * removed * * *, and thus and thereby have prevented the escape of gas from said main and pipes when they were broken in the course of such removal, but defendant negligently failed to use or provide such means and thereby prevent such escape.' This raises the question whether there was a duty, under all of the circumstances in evidence, to shut off all gas flowing through the main before Bangert's men commenced to remove the stump, so as to make the area completely safe. We do not think so. There is no evidence that the removal of the stump, if done with care, necessarily would result in breakage of the main. Bangert's employees were informed as to the existence and location of the gas main and pipes....