Jankey v. Hope Natural Gas Co.
| Decision Date | 10 March 1925 |
| Docket Number | 5189. |
| Citation | 127 S.E. 199,98 W.Va. 412 |
| Parties | JANKEY v. HOPE NATURAL GAS CO. |
| Court | West Virginia Supreme Court |
Submitted March 3, 1925.
Syllabus by the Court.
The rule of res ipsa loquitur as defined in Snyder v Wheeling Electrical Company, 43 W.Va. 661, 28 S.E. 733 39 L. R. A. 499, 64 Am. St. Rep. 922, in Bice v. Wheeling Electrical Co., 62 W.Va. 582, 59 S.E. 626, and in Jones v. Bridge Co., 70 W.Va. 374, 73 S.E. 942 followed and applied.
The holding of this court in its opinion in 91 W.Va. 308, 112 S.E. 642, that the facts and circumstances surrounding the explosion which injured the plaintiff as proven on the first trial hereof presented a case of prima facie negligence by defendant, is res judicata at a second trial thereof, upon proof of the same facts and circumstances.
Error to Circuit Court, Marion County.
Action by Charles Jankey against the Hope Natural Gas Company. Judgment for plaintiff, and defendant brings error. Affirmed.
See also, 91 W.Va. 308, 112 S.E. 642.
Arthur E. Young and Edward M. Borger, both of Pittsburgh, Pa., and Kemble White and Charles Powell, both of Fairmont, for plaintiff in error.
Harry Shaw and Frank C. Haymond, both of Fairmont, for defendant in error.
A trial of this case before the circuit court of Marion county resulted in a verdict of the jury in favor of the plaintiff for $5,000. The court rendered judgment for the plaintiff and against the defendant, in this amount, and the defendant alleges error.
This is the second time this case has been here on a writ of error. Our opinion on the first trial is reported in 91 W.Va. 308, 112 S.E. 642. The facts and circumstances surrounding the injury to plaintiff as proven at the first trial were again proven at the second trial. It is therefore unnecessary to make a restatement herein of the case. Some new evidence was produced on the second trial, which is as follows: The day following the accident, engine No. 2 was repaired. One of the repair men, named Toothman, testified that while repairing this engine he found a broken piece of valve under and holding open one of its air check valves. Toothman was a witness at the first trial, but made no mention of the discovery then. There is no evidence directly accounting for this piece of valve, although the explosion burst several valves on a two-inch air line which led to this, as well as the other engines. It was not a part of the valve in which it was lodged.
Proceeding on the assumption that this piece of metal had somehow gotten into and was holding open the valve of engine No. 2 just prior to and at the time of the explosion, quite an array of witnesses accounted for the explosion on the theory that the valve on engine No. 2, so held open, permitted the fuel mixture in the engine to be forced back into the air line on each compression stroke, while the engine was being operated by compressed air, and that, when the electric current was switched on, the ignition thereby started, extended from the combustion chamber of the engine out through the open valve into the air line, so filled with gas, with the resulting explosion which injured the plaintiff.
Five errors are alleged as grounds for a reversal of the case, which will be considered as numbered by the defendant.
I. The defendant asked the court to give to the jury eight instructions, of which the court gave instructions numbered 3, 6, 7, and 8, but refused instructions numbered 1, 2, 4, and 5. The defendant complains of the rejection by the court of the last-numbered instructions.
Defendant's instructions 1 and 2 are peremptory instructions. A peremptory instruction was also asked by the defendant at the former trial in this case, in regard to which the court in its opinion, said:
"Number 1 was peremptory, directing the jury to find for the defendant, and under the circumstances shown we think was properly refused."
We therefore have an express ruling by this court that the circumstances surrounding this injury, as proven at the first trial, warranted a submission of the case to the jury. The same circumstances which upon the former hearing this court held were properly submitted to a jury appeared in evidence at the second trial of this case. In addition to the circumstances surrounding the injury, two theories were offered as to the cause of the explosion at the first trial. The same two theories were in evidence on the second trial. At the last trial, however, another and different theory of the cause of the explosion was also presented, as aforesaid, which is referred to in the briefs in this case as the third theory. This theory was based on a fact, not proven, but merely assumed. It was a theory of experts just as were the other two theories. It differed therefrom in detail, but not in general character. For the purposes of this discussion, we see no distinction in law between it and the other two theories. The only fact from which was evolved this third theory was a fact determined after, and not before, the explosion, to wit, the discovery by Toothman of the piece of valve in the valve of engine No. 2. This fragment may as well have been the result as the cause of the explosion. In fact, one can hardly believe that an explosion so powerful as to burst asunder valves would have left anything in its pathway undisturbed. It is far more reasonable to believe that this valve fragment was a piece of one of the bursted valves along the air line, and that it had been hurled to the place where found, than to believe it remained in the same place while the terrific force which it had unleashed spent its fury in the rending of steel and the shattering of concrete. If it was proper to submit the case to the jury at the first trial, the mere injection of this third theory into the evidence at the second trial can in no wise affect the application of our first holding thereto.
The former decision in this case does not contain a discussion of the reasons prompting the holding that the peremptory instruction therein was improper. The ruling is justified in the opinion by reference only to the circumstances shown; i. e., res ipsa loquitur. The court assumed its reasons were obvious. The decision is just as binding on us as if the reasons for the holding had been given. "The decree of the Supreme Court of Appeals upon a question, decided by the court below, is final and irreversible, and upon a second appeal in the cause the question, decided upon the first appeal, cannot be reviewed." Henry et al. v. Davis, 13 W.Va. 230. See, also, 4 C.J. par. 3085, p. 1093.
Here was a plant solely under the management of the defendant. It had been operated a number of years. One of the witnesses testified to having worked at this plant more than six years prior to the explosion. This explosion was one which did not in the ordinary course of things, happen; proper care being used in the management of the plant. There is no evidence whatsoever in the case showing any care on the part of the defendant to employ reasonably safe fellow servants, or showing any inspection of, or rules for, the purpose of keeping the plant in a reasonably safe condition, except the sole evidence that it was the custom to thoroughly overhaul its engines once a year, to wit, during the summer months of each year. There is no evidence that the overhauling of such engines annually was sufficiently frequent to comply with the rule of ordinary care. The jury had no right to infer, and we have no right to infer, that an annual inspection, adjustment, and repair of these engines was reasonable care. Neither do we have the right to infer that reasonably safe fellow servants were furnished ...
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