Luengene v. The Consumers Light

• Decision Date: 06 April 1912
• Docket Number: 17,531
• Citation: 122 P. 1032,86 Kan. 866
• Parties: CHARLES S. LUENGENE, Appellee, v. THE CONSUMERS LIGHT, HEAT AND POWER COMPANY, Appellant
• Court: Kansas Supreme Court

122 P. 1032

86 Kan. 866

CHARLES S. LUENGENE, Appellee, v. THE CONSUMERS LIGHT, HEAT AND POWER COMPANY, Appellant

No. 17,531

Supreme Court of Kansas

April 6, 1912

Decided January, 1912.

Appeal from Shawnee district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Gas Explosion -- Personal Injuries -- Evidence. In an action for damages for personal injuries caused by a gas explosion in a building, against a company engaged in the sale and distribution of natural gas, an injured person who has exercised proper care for his own safety is not bound to show by what means the gas was ignited.

2. DEFECTIVE PIPES--Other Explosions--Notice to Superintendent. A letter from the mayor to the superintendent of the company supplying natural gas in the city, calling attention to recent gas explosions and requesting repairs to prevent further damage by escaping gas is competent evidence on the question of notice to the company in an action relating to an explosion occurring soon afterwards, although the particular location of defects was not stated in the letter.

3. DEFECTIVE PIPES-- Same. Where odors and other indications of the escape of natural gas appeared at certain premises, and occupants of the premises affected called the gas company by telephone, making complaint thereof and asking that some one be sent to investigate the matter, and thereupon a man came and made such investigation, evidence of these facts is competent as tending to show notice to the company.

4. EVIDENCE--Newspaper Reports--Notice. The testimony of the superintendent of a gas company that he was a subscriber to newspapers which contained accounts of gas explosions in the city and had read such articles is, in the circumstances stated in the opinion, competent evidence upon the question of notice to the company of defects and leakage.

5. JOINT WRONGDOERS--Joint Liability. A gas company is not absolved from the consequences of its negligence in permitting the escape of gas causing an explosion and injury in a particular place, merely because gas also escaped and accumulated in the same place through the negligence of another party. "Where two or more parties, by their concurrent wrongdoing, cause injury to a third person, they are jointly and severally liable." (Kansas City v. Slangstrom, 53 Kan. 431, 36 P. 706, syl. P 2, 36 P. 706.)

Charles Blood Smith, Edwin Hedrick, jr., and Samuel Barnum, for the appellant; Sears, Meagher & Whitney, of counsel.

Z. T. Hazen, and R. H. Gaw, for the appellee.

OPINION

BENSON, J.:

The appellee sued to recover damages for injuries caused by an explosion of gas in the basement of the Capper printing house, at the southeast corner of Jackson and Eighth streets in Topeka, where he was working as a pressman on the 19th day of December, 1909. It is alleged that the gas company was negligent in failing to keep and maintain its mains, pipes and connections in proper condition, and in negligently permitting gas to escape into manholes and trenches, and into and through a telephone conduit to the place where the explosion occurred. The answer contains a general denial, and a defense based upon an allegation that the city had negligently, and without notice to the company, placed a water pipe over and resting upon the gas main in such manner as to cause the latter to break and leak gas, and that if any gas escaped into the telephone manhole and conduit it was from such break. The company also pleaded contributory negligence.

Evidence was offered tending to prove the following facts: Gas escaped in the summer and fall of 1909 in such quantities as to be offensive to people residing near the intersection of Seventh and Jackson streets, causing a shortage in the supply of two families for domestic uses; a gas main extended east and west in Seventh street, from which service pipes of the company led to adjacent property, where such indications of leakage appeared; two explosions occurred in December, 1909, the last one five days before the one here complained of, and one on the following day in a cistern in Seventh street about 200 feet from the intersection referred to, and also in a telephone manhole in Seventh street about 600 feet from such intersection ten days before the plaintiff was injured. There was an explosion in the telephone manhole at Seventh and Jackson streets and another in a manhole between that point and the Capper building on the day following the explosion in that building. These manholes were connected by telephone conduits, one of which led from the one at Seventh and Jackson streets into the basement where the appellee was injured, which is about 600 feet distant. On December 23 the gas main and connecting service pipes on Seventh street at the intersection of Jackson street and easterly therefrom were uncovered, and it was found that at and near their connection with the main these pipes were perforated--little holes appeared therein about the size of an eight-penny nail head. The pipes were corroded and the threads of some of them where they were screwed into the main were eaten off with rust. Gas was escaping through these openings and took fire in the ditch. A piece of the perforated pipe was in evidence. These service pipes, or some of them, led to the premises where the escape of gas had been noticed in the summer before. The gas main was put down in the year 1879. Some of the service pipes were put in then and some afterwards. The main, which is a three-inch pipe, was found broken at a point underneath a water lateral six inches in diameter which crosses from the north side of Seventh street on the east side of Jackson street to a hydrant. This water lateral was placed there in April, 1909. The water pipe was raised a little at that point in order to go over the gas main, and lowered beyond it. When laid it was about the thickness of a hand above the gas main. It was depressed about one and one-half or two inches at the break, leaving an aperture through which gas was escaping, although the broken ends were closely joined at the top. The water pipe above was close to it, leaving an interstice of possibly a quarter of an inch filled with clay. These defects were near the telephone manhole at the corner before referred to. A sewer leading along Seventh street passed within ten feet of that manhole. Escaping gas was discovered at various other near-by points in the city a few days after the appellant was injured.

Occupants of the premises where gas escaped the preceding summer called the gas company at that time by telephone, making complaint and asking that some one be sent to ascertain about the leakage. Soon afterward a man came to the premises, examined the gas pipes in the buildings and made examination in the alley at the rear, but nothing further was done and the leakage continued. On December 17, 1909, the mayor addressed a letter to the superintendent of the gas company stating that much gas was escaping from the mains and service pipes, which had already caused considerable damage and was a menace to life and property, and requested that repairs should be made. On December 20, in a conference with the mayor, the superintendent attributed the trouble to sewer gas. Two daily newspapers of the city frequently published articles in the month of December, 1909, and before the explosion in the Capper building, referring to gas explosions in the city and the defective condition of mains and pipes. The superintendent was a subscriber to these papers and read these articles. His office is situated within three blocks of the intersection where the defective pipes were found. When the water main was being put down along Seventh street, while the work was in progress east of and near to Jackson street, the attention of the gas company was called to that work by the superintendent of the city waterworks, and a foreman of the gas company came and looked after some service pipes crossed by the gas main between Jackson street and the alley east of it. The water lateral was then being laid across Seventh street over the gas main. A foreman of the water department and a foreman of the gas company stood above the ditch where the pipes crossed and where the break afterward appeared, as already stated, and talked there about five minutes with the crossing below open and in view, but nothing was said about the pipes at that point or the crossing. The ditch remained open at that place about two weeks. The gas company had not been called, however, with respect to this crossing, but to look after service pipes between that point and the alley to the east.

There was no evidence of the cause of the ignition of gas in the basement where the explosion occurred by which appellant was injured, and the jury so found. An instruction was asked to the effect that in the absence of such evidence the action must fail. This was refused, and an instruction was given to the effect that such evidence was not essential to a recovery if the proof was otherwise sufficient, and the plaintiff himself was not negligent. This instruction, and the refusal to give the one requested, are among the principal reasons urged for reversal of the judgment. The argument is that there was an efficient and direct cause intervening between the negligence of the company and the injury to the appellant; that the ignition was this proximate cause, and that the alleged negligence of the company only furnished the condition or gave rise to the occasion by which the injury was made possible. The opinions of this court in Railway Co. v. Columbia, 65 Kan. 390, 69 P. 338; Rodgers v Railway Co., 75 Kan. 222, 88 P. 885; Gas Co. v. Dabney, 79 Kan. 820, 102 P. 488; and Colwell v. Parker, 81 Kan. 295, 105 P. 524, are cited in...