King v. Equitable Gas Co.

Decision Date17 April 1932
Docket Number42
Citation307 Pa. 287,161 A. 65
PartiesKing v. Equitable Gas Co., Appellant
CourtPennsylvania Supreme Court

Argued March 18, 1932

Appeal, No. 42, March T., 1932, by defendant, from judgment of C.P. Allegheny Co., Jan. T., 1930, No. 3228, on verdict for plaintiff, in case of Martin King v. Equitable Gas Company. Affirmed.

Trespass for personal injuries. Before STADTFELD, J.

The opinion of the Supreme Court states the facts.

Rule to quash sci. fa. was made absolute in opinion by MARSHALL, J.

Verdict and judgment for plaintiff for $25,000. Defendant appealed.

Errors assigned, inter alia, were refusal of motion for judgment for defendant n.o.v., and refusal of new trial because verdict was excessive, quoting record seriatim.

The judgment of the court below is affirmed.

Carl E Glock, with him Reed, Smith, Shaw & McClay, for appellant. -- Plaintiff failed to sustain the burden of proving that a negligent act of defendant was the proximate cause of his injury: Venzel v. Coal Co., 304 Pa. 583; Kemmler v. Penna. Co., 265 Pa. 212; Erbe v. Transit Co., 256 Pa. 567; Cawley v. R.R., 44 Pa.Super 340; Glancy v. Boro., 243 Pa. 216; Propert v. Flanagan, 277 Pa. 145; Decker v. R.R., 57 Pa.Super. 432; Bruggeman v. York, 254 Pa. 430; Sullivan v. R.R., 272 Pa. 429; Cowdrick v. R.R., 65 Pa.Super. 416; Curry v. Willson, 301 Pa. 467; Gausman v. Pearson, 284 Pa. 348; Long v. Frock, 304 Pa. 355; Cain v. Booth & Flinn, 294 Pa. 334; Ahern v. Melvin, 21 Pa.Super. 462; Ott v. Boggs, 219 Pa. 614; Zeher v. Pittsburgh, 279 Pa. 168; Fullick v. Oil Co., 260 Pa. 4; Alexander v. Water Co., 201 Pa. 252; Boehm v. Boro., 4 Pa. Superior Ct. 385; Bannon v. R.R., 29 Pa.Super. 231; Schaeffer v. Twp., 150 Pa. 145; Madden v. R.R., 236 Pa. 104; O'Donovan v. Phila. Co., 223 Pa. 234; Koelsch v. Phila. Co., 152 Pa. 355.

The verdict was excessive.

H. Fred Mercer, for appellee. -- The negligence of the gas company in maintaining the leaking saddle on its high pressure line, laid under a public street for forty-four years, and failing to inspect or replace it when its defective condition was known, was a question for the jury: Griffith v. Refining Co., 305 Pa. 386; Creevey v. Gas Co., 62 Pitts. L.J. 600; Diehle v. Gas Co., 225 Pa. 494; Lawrence v. Scranton, 284 Pa. 215; Darlington v. Pub. Ser. Co., 303 Pa. 288; Prichard v. Gas Co., 2 Pa. Superior Ct. 179; Heh v. Gas Co., 201 Pa. 443; Morgan v. Gas Co., 214 Pa. 109; Fredericks v. Refining Co., 282 Pa. 8.

The verdict was not excessive: Parkin v. Transit Co., 300 Pa. 569; Paul v. Refining Co., 304 Pa. 360; Lake Shore, etc., Ry. v. Rosenzweig, 113 Pa. 519; Wirsing v. Smith, 222 Pa. 8; Wilson v. Dressed Beef Co., 295 Pa. 168; Fredericks v. Refining Co., 282 Pa. 8; Murray v. R.R., 281 Pa. 474; Gallivan v. Wark Co., 288 Pa. 443.

Don Rose, of Rose & Eichenauer, H. K. Siebeneck and Edward E. Reinhold, for defendants, Arthur E. Braun and the Colonial Trust Co.

Before FRAZER, C.J., SIMPSON, KEPHART, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE SIMPSON:

On December 5, 1929, while plaintiff was in a trolley car on Eighth Avenue in the Borough of Munhall, he was badly injured by an explosion of natural gas, resulting in the total destruction of the borough post office building, which fronted on the avenue immediately opposite the point where the car was at that time. The natural gas was a part of that which had been passing through defendant's sixteen-inch main, carrying from twelve to seventeen pounds pressure and running longitudinally under the avenue. The question at issue was whether it escaped from the main and into the post office building because of defendant's negligence, or escaped by reason of defective gas pipes in the building itself, in which latter event the owners thereof would alone be liable. The jury rendered a verdict in favor of plaintiff, on which the court below entered the judgment from which defendant took the present appeal.

Before the trial, defendant issued a sci. fa. under the Act of April 10, 1929, P.L. 479, to bring upon the record the owners of the post office building as additional defendants. The court below correctly quashed the writ. That statute only applies where the persons sought to be added as additional defendants are "alleged to be liable over to [the defendant who issues the sci. fa.] for the cause of action declared on, or jointly or severally liable therefor with him." Appellant did not allege that the property owners were "liable over to [it] for the cause of action declared on," that is, for the negligence for which the suit was brought; but, on the contrary, asserted that they were alone liable, for an entirely different negligence, namely, for the failure to keep in repair the gas pipes in their building. Nor did defendant contend that they were "jointly or severally liable therefor with" [it] to plaintiff. On the contrary, it alleged that the property owners were alone liable. Had the Act of June 22, 1931, P.L. 663, been in effect at that time, the sci. fa. would have been proper, but this statute had not then been enacted.

The main question we are asked to decide is that set forth in the first statement of the questions involved, as follows: "Where there is evidence of two different possible causes of an explosion, for only one of which defendant would be responsible, did the plaintiff sustain the burden of proving with certainty that defendant's neglect was the proximate cause?" This seems to imply an admission that the proof as to one of those "possible causes," if standing alone, would have been sufficient to establish defendant's liability; and this, as we will now show, is clearly so. It appeared, from plaintiff's testimony, which we must accept as true when considering this question, that some forty-four years before the explosion defendant had laid the high pressure gas main in the avenue, placing around it ashes, cinders, mill rubbish and other refuse of a character which naturally would and did corrode the pipe in such a way as, in course of time, to cause it to leak, and would and did also provide a means by which the leaking gas would pass longitudinally through that rubbish, near to or along the pipe, until it found an outlet to the air, which it could not do at once because of the superimposed brick and concrete forming the bed of the street. The portion of the pipe which leaked had not been replaced, or even inspected to determine whether it needed repair or replacement, during the forty-four years it had been in the bed of the avenue, though adjoining portions had been replaced a few years before the explosion, and defendant's employees were then told that this pipe needed replacement, at the very point where the present leak occurred. At that time it was broken through by defendant's employees, at a point some 40 to 60 feet from the place of the explosion, and the break had been covered with a metal saddle, bolted down in an attempt to prevent leakage therefrom. In course of time, the pipe, which had been five-eighths of an inch thick, had been so corroded and eaten away, by reason of the character of the surrounding ashes, etc., as to be but one-eighth of an inch thick, and was falling to pieces; the nuts which had held the saddle in place had themselves corroded and fallen off; and the gas in the main escaped into the surrounding rubbish. This escape was noticed along the street for months before the date of the explosion, -- one witness said for about a year, -- but no attempt was made by defendant to ascertain its location or to repair it. The day after the accident all the houses in the neighborhood were disconnected from the main, yet another explosion then took place a short distance from the post office building, which, of course, could not be attributed to the asserted leak in the pipes of that building. On that day, also, the avenue was opened and the condition of the pipe and saddle ascertained, the escape of gas therefrom was then both heard and smelt, and the fact that it had long been escaping plainly appeared from the surrounding soil.

It is not an open question but that, from these facts standing alone, the jury would have been justified in finding defendant was negligent, and that this was the proximate cause of the injury (see Koelsch v. The Philadelphia Co., 152 Pa. 355; Shirey v. Consumers' Gas Co., 215 Pa. 399; Diehle v. United Gas Improvement Co., 225 Pa. 494; Lawrence v. Scranton City, 284 Pa. 215); hence defendant places its contention on a different ground. It asserts that, because it produced evidence which, if believed, would have shown that the cause of the explosion might have been gas leaking from the service pipes in the post office building, for which defendant would not have been responsible, it could not "with certainty [be known] that defendant's neglect was the proximate cause" of the explosion, and hence plaintiff could not recover. Plaintiff produced rebuttal testimony, however, which excluded the possibility of the leak having been in those service pipes. This being so, if defendant's legal contention were sustained, the constitutional requirement that "trial by jury shall be as heretofore and the right thereof remain inviolate" would become a dead letter, in this and every other case where a defendant, simply by producing some evidence, true or false, raises a question of fact as to the cause of an accident. Of course this cannot be so.

We have no intention of qualifying the rule that there can be no recovery if the injury of which complaint is made, may equally well, under the uncontradicted evidence or that believed by the jury, have resulted from one of two or more causes, for only one of which defendant would be liable but it has no applicability here. In this, and all other like cases, the...

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