Ibach v. Huntington Light & Fuel Co.

• Decision Date: 17 November 1899
• Citation: 23 Ind.App. 281,55 N.E. 249
• Parties: IBACH v. HUNTINGTON LIGHT & FUEL CO.
• Court: Indiana Appellate Court

23 Ind.App. 281

55 N.E. 249

IBACH

v.HUNTINGTON LIGHT & FUEL CO.

Appellate Court of Indiana.

Nov. 17, 1899.

Appeal from circuit court, Huntington county; C. W. Watkins, Judge.

Action by Mattie W. Ibach against the Huntington Light & Fuel Company. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Ibach & Ibach, J. C. Branyan, and B. M. Cobb, for appellant. Whitelock & Cook and Kenner & Lesh, for appellee.

ROBINSON, J.

Appellant avers in her complaint: That the city of Huntington granted appellee the use of its streets to lay mains to furnish natural gas to the citizens of such city; the consumer to pay appellee according to the number of the mixer to be used. That appellee retained the control of, and directed the use of, the mixer, which is an instrument regulating the flow of gas at the point where used for fuel. That, under the supervision of appellee, she had her residence supplied with pipes, and that appellee attached the same to its main in the street along appellant's property, and attached the same to a heating stove used by her for heating purposes. That the arrangement for using gas was by placing an instrument called a “mixer” at the end of the supply pipe, at a point near where the gas enters an appliance known as a “burner,”-being so arranged that the gas passes out of the pipe, through the mixer, into the burner; and “in the pipe, before the point where gas passes through the mixer, is placed a valve, which is opened and closed to regulate the flow of gas; but the amount of the flow of gas depends upon the pressure, entirely, which pressure is regulated by appellee,” and is not, and cannot be, controlled by the consumer. That the valve does not control the heat created by the burning of the gas, but that depends on the pressure, and size of mixer. That the “valve is used to turn off and put on the gas. The heat supplied depends on the pressure furnished by the company. That a valve may be wide open, and but a slight flow of gas, and small heat, result, according to the pressure; or it may be almost closed, and, owing to the pressure, and size of the mixer, great and dangerous heat follows, which she did not know.” That a No. 5 mixer, if the valve was wide open, did not create a large, excessive, and dangerous heat at any pressure furnished by appellee. That on the ------ day of November, 1895, she was using a No. 7 mixer, with the valve slightly turned on, and a small quantity of heat, with no danger of excessive heat, as she had done with a No. 5 mixer; and she believed, as appellee had assured her it was safe, that she could use it as she had used the No. 5. That appellee, knowing that sometimes pressure was increased without the consumer's knowledge, provided no means by which the consumer would be advised of such increase, and had no arrangement connected with the mixer or valve to regulate the flow of gas, and avoid dangerous and excessive heat in the absence of the consumer. That appellant had for a number of years used a No. 5 mixer, which remained the property of appellee, and over which she had no control, and which was of sufficient capacity to furnish all the heat required, without excessive heat, which appellee knew; and if, in her absence, the pressure increased, there was no danger of excessive heat. That, without the request and over the protest of appellant, appellee took out the No. 5 mixer, and replaced it with a No. 7 mixer, which supplied a larger volume of fuel, which replacing was done for the sole purpose of increasing the revenues of appellee, as by its franchise appellee was permitted to charge according to the size of the mixer in use. That the No. 7 mixer furnished too much fuel, and she requested it to be replaced with the one removed, and refused to pay the extra charge, and, upon such refusal, appellee threatened to take out the mixer and cut off her supply of gas; and being then in feeble health, and having no other means to heat her house, she was compelled to use the mixer. “That she did not know, neither had she the means of knowing, that...