Laurent v. United Fuel Gas Co.

• Decision Date: 27 April 1926
• Docket Number: (No. 5633.)
• Citation: 101 W.Va. 499
• Court: West Virginia Supreme Court
• Parties: Blanche Laurent v. United Fuel Gas Company.

101 W.Va. 499

Blanche Laurent

v.United Fuel Gas Company.

(No. 5633.)

Supreme Court of Appeals of West Virginia.

Submitted April 21, 1926.

Decided April 27, 1926.

1. Negligence Doctrine of Res Ipsa Loquitur Cannot be In-voked, if Defendant Does Not Have Control of Premises or Operations, or Where There is Divided Responsibility.

The doctrine of res ipsa loquitur cannot be invoked if defendant does not have control or management of the premises or operations where the accident occurred; or where there is divided responsibility, and the unexplained accident may have been the result of causes over which defendant had no control, (p. 511.)

(Gas, 28 C. J. § 69; Negligence, 29 Cyc. p. 592.)

2. Gas That Gas Company's Servants Were in Vicinity, At-tempting to Cut Off Gas From Adjoining Building When Explosion Occurred, and May Have Turned Gas Into Service Pipe, Held Insufficient to Sustain Recovery.

In an action for personal injuries resulting from a gas explosion in a building supplied with gas by defendant, the mere fact that defendant's servants were in the near vicinity attempting to cut the gas off from an. adjoining building when the explosion occurred and may have turned gas into a service pipe pointing in the direction of the adjoining building, is not sufficient upon which to base a. verdict and judgment in favor of plaintiff, unless it be shown by evidence creating more than an assumption or inference that the gas, if so turned on, was the cause of the explosion. (p. 512.)

(Gas, 2 8 C. J. § 71.)

3. same Person Injured by Gas Explosion Must Show Negli-gence of Defendant as Cause of Injury by Evidence Sufficient to Establish Rational Conclusion of Liability.

In such case the burden rests upon plaintiff to show negligence on the part of defendant which caused the injury, by evidence or a state of facts sufficient to establish a rational conclusion of liability. Until that is done, the defendant is not called upon to prove it was not negligent, or that the explosion was the result of a cause over which it had no control. (p. 513.)

(Gas, 28 C. J. § 68.)

(Note: Parenthetical references by Editors, C. J. Cyc Noc part of syllabi.)

Error to Circuit Court, Kanawha County.

Action by Blanche Laurent against the United Fuel Gas Company for personal injuries. Judgment for plaintiff, and defendant brings error.

Reversed; judgment entered for defendant.

Harold A. Ritz, J. M. Woods, and Price, Smith & Spilman, for plaintiff in error.

Townsend & Bock, Payne, Minor & Bouchelle, and Ben Moore, for defendant in error.

Lively, Judge:

On a demurrer to the evidence the trial court held in favor of plaintiff below, Blanche Laurent; a jury assessed her damages at $1,700., and judgment thereon was rendered, from which defendant below, the Gas Company, prosecutes this writ.

Plaintiff, an employee in the millinery store of Laura Lewis, at No. 223 Hale Street, Charleston, was injured by a gas explosion about 9 o'clock A. M., Dec. 1, 1924. Her ankle was sprained and her nervous system shocked. The morning was cold. Plaintiff came to the store about 8:30 and lit the gas in the stove in the front part and also the gas in a stove in the rear room. A partition without door separated the front part of the room from the back part. A little later, Francine Delforge, another employee, arrived, and a short time before the explosion, another employee, Mrs. Rule, came, and on entering the front room remarked that she smelled gas; she then opened the door to the stairway where the meters were and found the smell of gas strong. She walked back and was standing near the aperture in the partition between the rooms; plaintiff and Delforge were sitting near the stove in the back room, when the explosition occurred, first in the apartment immediately overhead on the second floor occupied by Spaulding and wife, and followed by another explosion, or possibly a continuation of the first, in the millinery store, throwing Mrs. Rule down, injuring her wrist, and causing the injuries to plaintiff. The stove by which plaintiff was sitting was turned over, but was still burning after the explosion and was turned out by Mrs. Rule.

The storeroom was in what is called the Solof Building, a two-story building with two storerooms on the ground floor, the southern one beiug occupied by an electric company; the northern storeroom, No. 223, by Laura Lewis; which building was formerly a brick dwelling house remodeled by Solof, with two living apartments on the second floor, the one over the electrical company being occupied by Fry, and the other over the millinery store being occupied by the Spauldings, as stated.

Adjoining the Solof Building on the north was another two-story brick building owned by Gus Loth and rented by a film exchange company which desired a meter set in its room on the first floor, and had applied to the Gas Company therefor. Short, defendant's employee, went to the film exchange room for that purpose on Nov. 29, and found that in the rear of the room on the first floor a meter had been once set but later removed. The film exchange desired the new meter set at another place farther away from its inflammable films. Short found upon examination of the pipe from which the former meter had been disconnected, that the gas was turned on, and it being necessary to have the gas off while in the process of connecting the meter and it not being within his authority and duty to turn off gas from a building, he made the proper report and request to the Gas Company, which, on the following Monday morning, the day of the explosion, sent three of its employees, Harris, Young and Rood to locate the curb box controlling the gas in the Loth building. Short had on Saturday observed two curb boxes in front of the Loth building four or five feet apart, one of which had a lid on it marked '' gas''; the other without lid and filled up with dirt and filth. He unscrewed the lid marked "gas" and by looking into it he saw that the gas was turned off, and he knew that the film exchange room was not supplied from that pipe. He had a key by which gas could be turned on or off, but did not use it. He then screwed the top back on. He made no inspection of the box from which the lid was gone and which was partially filled with dirt. Harris, Young and Rood arrived early and tried to locate the curb box controlling the gas to the film exchange. They noticed the box with the cap off, and Young ran his key down into the dirt and remarked, "if I am on the stop this gas is absolutely off." They "fooled" around waiting for the film people to come and open their storeroom; went into the Gazette office next door and waited. When the film man came and opened up, Harris went in and discovered, as Short had discovered, that the gas was in the pipes to which the meter was to be connected. They went to the alley in the rear, knowing that there was a gas main there, and dug a trench between the concrete in the alley and the Loth building, but could not find a service line. They then went back to Hale Street in front of the building and told the film exchange man that they would have to get permission to break the sidewalk. Young went up-stairs to find out whose gas was turned off, their examination having shown that the gas was turned off at the front. They made no examination of the box marked "gas". Green, a cook in the employ of Fry (who occupied the apartment over the electrical company store south of Mrs. Lewis), said that one of the men came up while he was cooking Fry's breakfast and asked if his gas was burning', and later came back and asked him how his "gas was now," and upon being asked by Green, "What was the matter?" replied, "I am mixed up in the place, there are two or three places down there." Harris thinking probably that the water company had enclosed the box controlling the gas in its curb box was bending over looking into the water company's box when the explosion occurred. Rood was near him, and Young was standing about twenty feet away with witness Coffey, the plumber who had arrived to set the meter in the film exchange. Bennett, a witness for plaintiff, who was on the scene two or three seconds after the explosion, saw some one in overalls with a key which he thought was placed in an opening in the street with the cap removed, the opening near the line between Solof and Loth farthest north. A short time after the explosion, McMillan and Chenoweth, employees of defendant, came to the scene and immediately broke into the sidewalk and took up the stopcocks from both of the boxes. The south box marked "gas" had the top screwed on. Five or six witnesses who inspected them say they were closed when dug up. The lug on one had been partially broken ("out of commission"). The cocks were preserved and introduced in evidence in the same condition in which they were dug up and disconnected from the pipes. The pipes were followed and removed to property line, but no farther. It was not determined which way or where these service lines thus disconnected went. The pipe line farthest north from the Lewis store, on which line the stopcock enclosed by the open box filled with dirt was attached, was tested by air pressure and developed no leaks. The other line nearer to the Lewis store to which was attached the stopcock, the box of which was closed with the cap marked "gas" was tested, and would not hold air. The stopcocks themselves were tested and did not leak. When these two boxes were dug up, one had the top screwed on (the closed one), and the other (with the dirt in it) was unclosed. It will be observed that the line reached by the open box with the dirt in it did not leak. This was the one farthest north from the Lewis store where plaintiff was hurt; the other line nearest the Lewis store (both in front of film exchange) did leak when tested. No one knew where these service lines extended. The Gas Company keeps no record of where the service lines go, it generally furnishing gas to the...