Keith v. United Cities Gas Co., 29

• Decision Date: 14 January 1966
• Docket Number: No. 29,29
• Citation: 266 N.C. 119,146 S.E.2d 7
• Court: North Carolina Supreme Court
• Parties: Theresa McDuffie KEITH v. UNITED CITIES GAS COMPANY, a Corporation, and Duke Power Company, a Corporation.

Page 7

146 S.E.2d 7

266 N.C. 119

Theresa McDuffie KEITH v. UNITED CITIES GAS COMPANY, a Corporation, and Duke Power Company, a Corporation.

No. 29.

Supreme Court of North Carolina.

Jan. 14, 1966.

Prince, Jackson, Youngblood & Massagee, Hendersonville, for defendant appellant United Cities Gas Co.

William I. Ward, Jr., Charlotte, Whitmire & Whitmire, Hendersonville, Carl Horn, Jr., and Harold D. Coley, Jr., Charlotte, for defendant appellant Duke Power Co.

Redden, Redden & Redden, Henderson ville, for plaintiff appellee.

LAKE, Justice.

The Appeal to the Gas Company

In Graham v. North Carolina Butane Gas Company, 231 N.C. 680, 684, 58 S.E.2d 757, 17 A.L.R.2d 881, this Court, speaking through Ervin, J., said: 'It is a scientific fact 'that gas ordinarily used for fuel is so inflammable that the moment a flame is applied it will immediately ignite with an instant explosion, if it is present in any considerable volume.' * * * This being true, such gas is a dangerous substance when it is not under control.' The original quotation is from Holmberg v. Jacobs, 77 Or. 246, 150 P. 284. It was again quoted with approval by this Court in Ashley v. Jones, 246 N.C. 442, 98 S.E.2d 667.

The plaintiff's evidence shows that before the explosion occurred the second fire had been burning in this one room building long enough for someone to discover it and turn in the fire alarm and for the Fire Department's truck to be enroute to the fire. The plaintiff's evidence thus refutes her contention that gas was present in the building in substantial quantity when this fire began and its ignition by an electric spark started the fire. The plaintiff's evidence shows, furthermore, that natural gas, being lighter than air, rises when released into a room. Her evidence also shows that from the time of the first fire to the time of the second there was in the ceiling of this room an opening, three feet in diameter, leading immediately into an attic, at each end of which there was an unobstructed opening substantial in size.

The plaintiff's evidence is that following the first fire employees of the Gas Company, then present at the building, reported to her husband that they had cut the gas off, and a fireman stated to Mrs. Swann that this had been done. Her husband testified that when he left the building, after the inspection and conferences which followed the first fire, he was satisfied in his own mind that the gas was off. This was after the time when he and the plaintiff say they detected an odor of gas in the building.

Upon the defendants' motions for judgment of nonsuit, the plaintiff's evidence is to be interpreted in the light most favorable to her, all reasonable inferences favorable to her must be drawn therefrom, conflicts therein are to be resolved in her favor and evidence of the defendant establishing a different factual situation must be disregarded. Moss v. Tate, 264 N.C. 544, 142 S.E.2d 161; Sugg v. Baker, 261 N.C. 579, 135 S.E.2d 565; Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338; Ammons v. Britt, 259 N.C. 740, 131 S.E.2d 349.

There is nothing in the evidence to indicate that the gas was not completely shut off from the building following the first fire unless it be found in these circumstances: (1) Before leaving the premises, after the first fire, the plaintiff and her husband smelled an odor of gas in the building; (2) the next morning an explosion occurred in the building while it was burning; (3) each of two witnesses, who were not present in the interval between the fires, testified that, in his opinion, a spark ignited gas in the building, this opinion resting upon the hypothesis that 'an explosion occurred * * * that the building and its contents caught fire.' We do not regard these circumstances as being inconsistent with the evidence offered by the plaintiff to the effect that the gas supply had been cut off.

The hypothesis upon which her expert witnesses based their opinion as to the presence of gas in the building, namely, that the explosion preceded the fire, is not supported by any evidence. It is contrary to the testimony of the only observer called as a witness for the plaintiff. Upon a motion for judgment of nonsuit all evidence favorable to the plaintiff, including evidence improperly admitted, must be considered. Langley v. Durham Life Insurance Co., 261 N.C. 459, 135 S.E.2d 38. Therefore, the opinions of these expert witnesses are, for this purpose, treated by us as if competent. So treated, they are merely opinions that an explosion, followed by a fire, indicates the presence of gas in the building.

An explosion in a building to which gas pipes are connected is not, standing alone, evidence that gas escaped from such pipes into the building. There are many possible causes of an explosion in a building which has been burning for a substantial but undetermined interval of time. The doctrine of res ipsa loquitur does not apply so as to carry us, from proof of (1) natural gas service to a building plus (2) explosion, to the conclusion that gas had leaked from the pipes or fixtures. See Stansbury, North Carolina Evidence, § 227.

The testimony of the plaintiff and her husband that, following the first fire, they detected an odor of gas in the building is not inconsistent with her evidence showing that during the fire the supply of gas to the building was cut off. The odor may have continued for an interval after the closing of the valves prevented further escape of gas into the building. If, moreover, this could be regarded as evidence that gas was continuing to come into the building, it clearly establishes contributory negligence on the part of the plaintiff, for her evidence is that, knowing the representative of the Gas Company had left the premises, neither she nor her husband made any effort to inform the Gas Company of the continued presence of gas after its employee had supposedly shut off the supply, neither of them turned the cutoff valves on the individual units of equipment or examined the cutoff valves at the meter.

Although natural gas is so highly inflammable as to be an inherently dangerous commodity, so that the company supplying it must use a high degree of care to prevent its escape into a building, the company's liability for damage resulting from escaping gas is based upon its negligence. Ashley v. Jones, supra; Graham v. North Carolina Butane Gas Co., surpa.

The plaintiff's evidence is that all of the gas burning equipment was in excellent condition before the first fire. It was maintained by her tenant's own service man. The Gas Company had no notice of any defect in any of the equipment prior to the first fire. When a gas company, engaged in supplying gas to a customer's building, becomes aware that gas is escaping from the fixtures into the building, it is the duty of the gas company to shut off the gas until further escape thereof can be prevented, even though the fixtures do not belong to the company and are not in its charge or custody. Graham v. North Carolina Butane Gas Co., supra. Interpreting the plaintiff's evidence in the light most favorable to her, it may be inferred that, at the time of the first fire, gas was escaping into the building from a water heater. Thus, the Gas Company, being advised of...