Indianapolis Abattoir Co. v. Temperly

• Decision Date: 17 October 1902
• Parties: INDIANAPOLIS ABATTOIR CO. v. TEMPERLY.
• Court: Indiana Supreme Court

159 Ind. 651

64 N.E. 906

INDIANAPOLIS ABATTOIR CO.

v.TEMPERLY.¹

Supreme Court of Indiana.

Oct. 17, 1902.

Appeal from superior court, Marion county; John L. McMaster, Judge.

Action by Harriet H. Temperly against the Indianapolis Abattoir Company. Judgment for plaintiff. Defendant appeals. Transferred from appellate court under Acts 1901, p. 590. Affirmed.Miller, Elam & Fesler, for appellant. Harding, Hovey & Wiltsie, for appellee.

DOWLING, C. J.

The appellant, which was the defendant below, was the owner of certain grounds and structures in the suburbs of the city of Indianapolis, one of which buildings was used for the purposes of cold storage. It was divided into rooms or compartments, which were rented to divers persons for the storage and preservation of meats and other articles by the use of cold air. The several buildings on the grounds were detached from each other, and separated by considerable spaces; one of them, quite remote from that used for cold storage, being occupied by appellant as its office. The appellant caused gas pipes to be run up the side of the cold-storage building, and through the lofts of the compartments rented to the tenants of these rooms to its office for the exclusive use of such office. The appellee rented and occupied one of the rooms in the cold-storage building for the storage of fresh meats. On February 13, 1895, the room so used by the appellee had, without his knowledge, become filled with natural gas, which escaped from the said pipes at some point on the said premises. The appellee, on entering the room on the morning of that day, and while it was yet dark, struck a match to light a candle. A violent explosion from the ignition of the gas instantaneously took place, and the appellee was severely injured thereby. He brought suit to recover damages for the injuries alleged to have been sustained, charging in his complaint that the accident was occasioned by the negligence of the appellant in so constructing and maintaining the gas pipes that gas leaked from them and escaped into the room rented by him. He alleged that the appellant had notice of the defective condition of the said gas pipes, but that he had not, and that the accident and injury occurred without fault on his part. The answer of the appellant was a denial. The case was tried by a jury, which returned a general verdict for the appellee, with answers to a great number of questions of fact. The court overruled the motions of the appellant for judgment in its favor on the answers to the questions of fact and for a new trial. Judgment was rendered on the verdict, and the abattoir company appealed.

We are asked to reverse the judgment because of the supposed errors of the trial court in its rulings on the demurrer to the complaint and on the motions for judgment and for a new trial. The first objection taken to the complaint is that it does not appear that the appellant, as landlord, violated any duty which it owed to the appellee as its tenant. While it is true that in this state a landlord cannot be compelled to make repairs in the absence of an agreement to do so, and is not responsible for injuries resulting from such failure to repair, yet it is equally well settled that where he occupies a portion of the premises himself he is not permitted to use such parts in such manner as to injure his tenant. In the present case it is alleged that the appellant piped the premises for its own benefit solely, and not for the convenience or use of the appellee. It is perfectly clear that in so doing and in maintaining the gas pipes it was bound to use ordinary care to prevent the escape of gas from them, and consequent injury to the appellee. It is averred that the gas pipes laid down and maintained by the appellant for its own use were defective and leaking, and that this fact was known to the appellant. The appellant must be presumed to have known the dangerous qualities of escaping natural gas, and if, with the knowledge that it was escaping, it permitted such leakage to continue until an explosion took place, the injured tenant being without fault, the landlord would be liable. Peil v. Reinhart, 127 N. Y. 381, 27 N. E. 1077, 12 L. R. A. 843;Coupe v. Platt, 172 Mass. 458, 52 N. E. 526, 70 Am. St. Rep. 293. The appellant owed to the appellee the duty to use ordinary or reasonable care to prevent the escape of gas from its pipes in such quantities as to become dangerous to life or property. Kimmell v. Burfeind, 2 Daly, 155; Mining Co. v. Patton, 129 Ind. 472, 28 N. E. 1113, 28 Am. St. Rep. 203, and note; Trust Co. v. Perrego, 144 Ind. 350, 43 N. E. 306, 32 L. R. A. 146;Richmond Gas Co. v. Baker, 146 Ind. 600, 45 N. E. 1049, 36 L. R. A. 683;Citron v. Bayley, 36 App. Div. 130, 55 N. Y. Supp. 382;Gas Co. v. Crocker, 82 Md. 113, 33 Atl. 423, 31 L. R. A. 785;Hunt v. Gas Light Co., 3 Allen, 418;Kibele v. City of Philadelphia, 105 Pa. 41; Parry v. Smith, 4 C. P. Div. 325; 41 Law T. (N. S.) 93; Koelsch v. Philadelphia Co., 152 Pa. 355, 25 Atl. 522, 18 L. R. A. 759, 34 Am. St. Rep. 653. If it was necessary to aver want of knowledge of the escape of the gas on the part of the tenant, we think the allegation on that subject was sufficient. The averment was “that appellee, on the day of his injury, without negligence, and not knowing that said gas had escaped and filled his room, and not knowing the danger of so doing, entered the room in which said gas was confined,” etc. We are of the opinion that in cases of this character the doctrine of assumed risk does not apply, and that it is sufficient to allege that the injury occurred without contributory fault on the part of the appellee. Besides, nothing in the complaint shows that the appellee knew that the pipes were defective, or that any gas had escaped from them, and we cannot presume, from anything we find in the complaint, that he had such knowledge. The complaint was sufficient, and the demurrer to it was properly overruled.

In the discussion of the motion for judgment for the appellant upon the answers to the interrogatories, we have been referred by counsel to no answer which necessarily overthrows the general verdict. If it appeared from an answer that at the time of the explosion the appellee was not the tenant of the appellant, or that the appellant maintained no gas pipes upon its premises, or that no leak existed in its pipes, or that the appellee, when he struck the light, knew that the room contained gas to a dangerous extent, or that the appellee was not injured by the explosion, such an answer would have been irreconcilable with the general verdict upon any theory, and would have overthrown it. But this is not the character of the answers upon which we are asked to reverse the judgment of the trial court. The plugging of a disused tin spout or pipe through which another tenant thought that escaping gas from outside the cold-storage building, or some other unpleasant odor, found its way into the room occupied by him, is relatively of no importance in this case. A plug in that pipe did not stop any leak in the gas pipes, and it was not the exercise of ordinary care to attempt to shut off the escaping gas by that expedient.

We set out a few of the interrogatories relied upon by appellant, with the answers to the same: “(17) Did said Bryan [another tenant of the cold-storage building, occupying the...