Lebanon Light, Heat & Power Co. v. Leap

• Decision Date: 27 November 1894
• Citation: 139 Ind. 443,39 N.E. 57
• Parties: LEBANON LIGHT, HEAT & POWER CO. et al. v. LEAP.
• Court: Indiana Supreme Court

139 Ind. 443

39 N.E. 57

LEBANON LIGHT, HEAT & POWER CO. et al.

v.LEAP.

Supreme Court of Indiana.

Nov. 27, 1894.

Appeal from circuit court, Hamilton county; R. R. Stephenson, Judge.

Action by Amos Leap against the Lebanon Light, Heat & Power Company and others. There was a judgment for plaintiff, and defendants appeal. Reversed.Shirts & Kilbourne and Terhune, Schlater & Shelton, for appellants. Kane & Davis, for appellee.

HOWARD, J.

The Lebanon Light, Heat & Power Company entered into a contract with its coappellant Charles T. Doxey, according to which the said Doxey was to construct a natural gas plant for the appellant company. The terms of this contract do not appear from the record. The appellant Doxey also entered into a contract with his coappellant John E. Snow, according to the terms of which the said Snow was to drill four gas wells in Hamilton county to supply gas for said gas plant. The wells were to be drilled at such points as Doxey should direct. Snow was to receive $625 for each well, and was himself to do all the work and furnish all labor; also, fuel for the first well. He was to have the privilege of using gas from the first well or wells for drilling purposes. He was to pipe such gas at his own expense, except that Doxey was to furnish him the necessary pipes and fittings. The four wells were located near the crossing of two highways. The first well was situated near the east and west highway, and about half a mile west of the crossing. Doxey located well No. 2 near the north and south highway, and about three-quarters of a mile north of the crossing. In like manner, well No. 3 was located by Doxey near the east and west highway, and about half a mile east of the crossing. Well No. 4 was not near the highway, but was located about a mile north of well No. 1. After drilling well No. 1, and when well No. 2 was located, Snow laid a two-inch supply pipe on top of the ground, along the north side of the highway, from well No. 1 east to the crossing, where he put in a T, and thence continued the pipe along the west side of the highway, north to well No. 2. After well No. 2 was drilled, and well No. 3 located, Snow continued the pipe line from the T at the crossing, east along the north side of the highway, to well No. 3. At the time of the accident, wells Nos. 1, 2, and 3 had been drilled. The accident occurred September 20, 1890, about two weeks after the completion of well No. 3. Snow was then engaged at No. 4, away from either highway. Soon after well No. 3 had been completed, Doxey's men took up the pipe on the north and south highway, from the T at the crossing, north to well No. 2. There was then no gas in the pipe at the crossing. Snow was getting his gas from wells 1 and 2 for use in drilling No. 4, and it does not appear that he had anything further to do with well No. 3 or with the pipe on the highway. Doxey's assistant testifies that he began taking up the pipe north from the crossing by cutting the second joint north of the T. They then took two pairs of tongs,-one to hold the first joint in place, and keep it from turning in the T, while the other was used to unscrew the piece of the second joint which had been cut off. They then plugged up the end of the first joint with a two-inch wooden plug, and went on and took up the rest of the pipe north to well No. 2. When cutting the second joint, and unscrewing the piece from the first joint, and plugging the end of the latter, they did not examine the T to see if the joint of pipe was tight in it, but it seemed tight. There was no gas on that line at the time. The T was cast iron, and of heavier make than the pipe. It would weigh about 25 pounds. The joint of pipe left attached to it was about 19 feet long. It was about 12 feet from the nearest fence. It does not appear how soon after the taking up of the pipe north of the T that the gas was again turned on, nor does it appear who turned it on, nor for what purpose or use it was turned on. Snow, as we have seen, had not used gas through this line since his completion of well No. 3, which was about two weeks previous to the accident. It does appear, however, from the testimony of Frank K. Pierce, an employé of the appellant Doxey, and superintendent of construction of the permanent line to Lebanon, that that line was completed into the city of Lebanon, and gas furnished to the city, in the month of August, 1890, the month previous to the date of the accident. But, for whatever purpose the gas was turned into the pipe between wells 1 and 3 after the taking up of the pipe north of the T, it is certain that between that time and the time of the accident the leak of gas at the T was observed frequently. It also seems very probable that the leak was noticed before the taking up of the pipe; but of this the evidence is not so marked, while it is clear that the leak grew worse from time to time up to the date of the accident.

The appellee was at the time about 18 years of age, and lived with his father about 40 rods south of the crossing. Several persons testified that they saw gas on fire at the leak in the T on the day of the accident and at other times previous. John Griffin, who lived near the crossing, and who was the father of Warren Griffin, another boy who was hurt at the accident, testified that there had been a leak at the T, to some extent, ever since the pipe had been laid, and that the leak had been quite bad for some length of time previous to the accident. Others who had passed there frequently had never noticed the leak before that day. Some had smelled gas for a few days previously, but saw no fire. John Leap, father of the appellee, had seen it on fire about two weeks before, and had put out the fire with a bucket of water, but had not seen it burning on any other occasion. The appellee himself testified that he had noticed the leak on fire about two months before the accident, and at different times all along up to the time of the accident. The last time previous he had seen it on fire was on the preceding Monday night. The accident happened on Saturday. On that Monday night, he says, there was a charivari party out, and they stopped for a while near the leak, and some one set it afire. It burned for five minutes or less, when they put it out, and went home. He did not touch the pipe or set the gas afire himself. He saw two of the party lift up the end of the link of pipe about four feet, and then let it down again. Appellee next saw the leak afire on the Saturday of the accident, about 10 o'clock in the morning. The blaze was then three or four feet high when he came up to it. The pipe at the T and across the traveled part of the road was covered with about an inch or two of earth. It had been so covered when first laid. He again saw the leak between 1 and 2 o'clock that afternoon. He was on his way afoot to Sheridan, a town about a mile north of the crossing. When he came up to the fire, he saw Warren Griffin, a boy about 12 years of age, standing there. He began talking to Warren about the nice time they had at the charivari. He noticed Warren with a small stick scraping along the dirt where the fire was burning. While they were standing there, a neighbor came along in a team going to Sheridan, and asked appellee to go along, but he said he was not quite ready. Another neighbor, Mr. Raridan, passed along a minute or two later, and made some remark about the fire. The two boys were standing without talking during this time, when appellee testifies he said to Warren, “‘If that plug was taken out of that pipe, it would make a nice fire.’ He asked, ‘What plug?’ and I went around and pointed to the plug, * * * the plug in the north end of the pipe. * * * He walked around to the end of the pipe, and raised the end of the pipe up somewhere about three inches, and that was the last I knew.” The explosion followed, the joint of pipe being thrown out, and the two boys thrown violently back and burned by the gas. On cross-examination the appellee testified that he had seen the wells put down, and saw the gas burning at the wells, and knew that it had been turned into the pipe. He had stopped at the crossing a great many times since the pipe was put down. Quite a crowd of boys and girls used to assemble there Sunday evenings. He never lit the gas or interfered with the pipe himself. He saw the link of pipe lifted up by boys several times, sometimes when the leak was afire. They just raised it up, and then let it down. On the night of the charivari, when the gas was lit, and two persons lifted up the joint of pipe, he heard his father say, “Boys, I would not do that,” and they laid it down. At the time of the accident he told Warren, “If the plug was took out, and it was lifted up, it would make a nice fire.” The earth which Warren was scratching with a stick was burned red, like tile. Warren turned to look at the fire just as he raised the pipe. Appellee did not touch the pipe. Warren Griffin testified that he was at the crossing with his brother before noon on the day of the accident, for about five minutes. The blaze at the leak was then about six feet high. He went down again alone after dinner. Just after he got there, the appellee came along, going to town. He had not seen the appellee since the Sunday before, and did not expect him then. They had been there about five minutes before the explosion. They were standing near the end of the link. Appellee said, “‘If the plug was out of the end of the pipe, and the pipe was raised up, it would make a nice fire.’ I said, ‘What plug?’ and he showed me; and I lifted the pipe up a little, * * * about three inches.” Appellee did not have hold of it. Thomas W. Raridan, one of the neighbors who passed while the boys were standing near the pipe, testified that after he passed them, going north, he looked back and saw the smaller boy stoop, as if he were about to lift something up. The other boy was standing near by, but...