Huntington Light & Fuel Company v. Beaver

• Decision Date: 04 April 1905
• Docket Number: 5,154
• Citation: 73 N.E. 1002,37 Ind.App. 4
• Court: Indiana Appellate Court
• Parties: HUNTINGTON LIGHT & FUEL COMPANY v. BEAVER

73 N.E. 1002

37 Ind.App. 4

HUNTINGTON LIGHT & FUEL COMPANY v. BEAVER

No. 5,154

Court of Appeals of Indiana

April 4, 1905

Rehearing denied June 28, 1905.

Transfer denied December 12, 1905.

From Wabash Circuit Court; H. B. Shively, Special Judge.

Action by Albert W. Beaver against the Huntington Light & Fuel Company. From a judgment on a verdict for plaintiff for $ 2,500, defendant appeals.

Affirmed.

Kenner & Lucas, Lesh & Lesh and S. E. Cook, for appellant.

Warren G. Sayre and C. W. Walkins, for appellee.

OPINION

ROBINSON, P. J.

Action by appellee for damages for personal injuries resulting from an explosion of natural gas. With their general verdict in appellee's favor the jury returned answers to interrogatories. Over appellant's motions for judgment on the answers and for a new trial judgment was rendered on the verdict. The rulings on these motions and on the demurrer to the amended complaint are assigned as errors.

The complaint avers, in substance: That appellant maintained a system of pipes in the streets and up to the property line of abutting owners for furnishing gas to customers; that property owners using gas were required to allow appellant the sole right to test the piping, including the piping from the curb or street line to the building where the private pipe-line entered through the building, so that appellant might determine for itself the sufficiency of the piping to insure safety in its use; that one Carey had caused a new house built by her to be piped for gas, and that appellant had tested the same and pronounced it secure, and connected the same with its pipe in the street; that the house was about twenty feet from appellant's valve at the street, which valve was under appellant's exclusive control; that from this valve gas was to be conducted to the house through a private pipe or private service valve at the front of the house, which private pipe was laid about eighteen inches deep, until near the house it was carried upward by use of an elbow to a point where it passed between the stone foundation wall and the framework of the house, and then radiated under the house to different parts thereof that appellee rented the house, and on May 24, 1898, moved therein, and notified appellant to turn on the gas; that appellant's manager came to make the connection to flow gas through the mixer into the cook stove, but found that gas would not flow through the mixer or into the stove, whereupon he announced to appellee that he would turn off the gas at the street valve, and that he would return later and make the attachment; that thereupon the owner of the building procured a plumber to ascertain the location of the defect in the plumbing; that the owner of the building and the plumber, believing that the manager had turned off the gas at the company's supply valve, and that there was no gas still flowing from the line through the company's valve, and believing that the only test required was of the pipes within the building, attempted to make inspection of the pipes within the building, "but what said plumber did plaintiff does not know;" that, had the gas been turned off at the street, it could not have reached the cellar, and would not have been there in sufficient quantities to cause the explosion when it did; that by the carelessness, oversight, mistake and negligence of the manager, appellant had turned off the valve at the house, the private property valve, and not the company's valve at the street; that, without the knowledge of appellee, the owner, her agent or the plumber who had done the plumbing, the elbow in the pipe had broken and separated at the point where it was near the wall, and under the ground and invisible to appellee, the owner, agent and plumber, and, by reason of such break, and the mistake, oversight and negligence of appellant's manager in turning off the wrong valve, the gas was "flowing in a heavy volume through the pipes between said company's valve and the house valve, and out through the broken part of said elbow against the wall beneath the ground at a place where there was a seam or crack in said wall through which the gas invisibly flowed and continued to flow at the time said plumber was searching for the leak;" that appellee and the owner and her agent were ignorant of the mistake made by appellant's manager, and were unwarned of danger, believing that no more gas was flowing through the company's valve; that the plumber, without any direction from appellee, by some means unknown to him, ignited the gas under the house, which had permeated through the wall, and to some extent through the house; that without any fault on appellee's part the gas exploded, producing injuries particularly described; that such injuries resulted to appellee without his fault, and by reason of appellant's negligence in failing to turn off the gas at the street, and which the company had on that day turned on at the street valve; that appellant had no right to turn the private valve, but that it was its duty, when searching for a defect in the piping either to or in the house, to turn off the gas at its own valve, and by reason of its wrongful act in omitting to turn the gas off at its valve where it had turned it on, and by reason of appellant's failing to warn appellee or the owner or plumber that the company's valve stood open and the gas was flowing into the private pipe, and by reason of appellant's manager's so leaving it to flow, and by reason of his neglecting to ascertain where or how the plumbing should be repaired, the "company and the plumber, by some means unknown and unauthorized by this plaintiff, produced said explosion" and the injuries complained of; that the plumber was not employed by appellee, and was not under his control or direction.

Against the sufficiency of the complaint, appellant's counsel urge in the argument that the acts or omissions complained of do not amount to negligence, and that the pleading shows that an independent intervening agency was the proximate cause of the injury.

The complaint proceeds upon the theory that appellant was negligent in failing to turn off the gas at the street valve and stop the flow of gas into the building. When the manager turned on the gas at the street valve, and found that the pipe was not carrying the gas to the stove in the house, he must have known that the gas was leaving the pipe somewhere between the street valve and the terminus of the pipe in the house. He was acting upon the supposition that there was gas in the street line and in the service pipe up to the street valve. There was no escape of gas until after he had opened the street valve. And knowing, as he was bound to know, the dangerous character of natural gas, and the danger arising from its escaping into or under a building, and not knowing at what point after the gas passed the street valve it was leaving the pipe, it can not be said that he was using due care, under all the circumstances, when he undertook to stop the escape of gas into the house by turning off the gas at any point other than at the point where he had turned it on. The complaint shows appellant's negligence, but the question remains whether the facts pleaded show this negligence to have been the proximate cause of the injury.

The plumber engaged to hunt for the leak was not engaged by either appellant or appellee, but by the owner of the property. It is averred that the plumber, while in the building seeking to locate the leak, ignited the gas, which had permeated the house, resulting in the explosion and injuries. The act of the plumber in igniting the gas, if he did ignite it, was an act of negligence, but can this negligent act be said to be itself responsible for the injury? It argues nothing to say that had the company's manager turned off the gas at the street valve there would have been no accident. But, it must be said, that the conduct of appellant's manager created an essential condition to the injuries. And while, in the consideration of negligence as a proximate cause of injuries, the distinction between causes and conditions should be kept in view, yet, if appellant created certain conditions by which some subsequent cause, the occurrence of which might have been expected, was rendered hurtful, appellant is liable. It may be said that the act of the gas being ignited by the plumber could not have been foreseen by appellant, and that it was a cause, the occurrence of which could not have been expected yet we think appellant's manager was bound to anticipate that if the gas continued to escape into the building it might be ignited in some way and produce injury. "It is, indeed, not necessary," said the court in Ohio, etc., R. Co. v. Trowbridge (1890), 126 Ind. 391, 26 N.E. 64, "that the precise injury which, in fact, did occur should have been foreseen; it is sufficient if it was to be reasonably expected that injury might occur...