Matthews v. Cumberland & Allegheny Gas Co.

• Decision Date: 15 July 1953
• Docket Number: No. 10541,10541
• Court: West Virginia Supreme Court
• Parties: MATTHEWS, v. CUMBERLAND & ALLEGHENY GAS CO.

Page 180

77 S.E.2d 180

138 W.Va. 639

MATTHEWS, v. CUMBERLAND & ALLEGHENY GAS CO.

No. 10541.

Supreme Court of Appeals of West Virginia.

Submitted April 28, 1953.

Decided July 15, 1953.

Syllabus by the Court.

1. In order to recover in an action based on negligence the plaintiff must prove that the defendant was guilty of negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains.

2. Negligence to be actionable must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury.

3. To warrant a finding that negligence is the proximate cause of an injury it must appear that the injury was the natural and probable consequence of the negligent act and that it ought to have been foreseen in the light of the attending circumstances.

4. One requisite of proximate cause is an act or an omission which a person of ordinary prudence could reasonably foresee might naturally or probably produce an injury, and the other requisite is that such act or omission did produce the injury.

5. The proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have resulted.

6. When the material facts are undisputed and reasonable men can draw only one conclusion from them the question of negligence is a question of law for the court.

7. The doctrine of assumed or incurred risk does not apply to a situation in which one person creates a danger and another person, with knowledge and appreciation of its existence, voluntarily assumes the risk of such danger but is not injured by it.

8. A person in a sudden emergency, who acts according to his best judgment or, because of insufficient time to form a judgment, fails to act in the most judicious manner, is not guilty of negligence if he exercises the care of a reasonably prudent person in like circumstances.

9. It is reversible error to give an abstract instruction which tends to mislead or confuse the jury.

Charles C. Wise, Jr., Charleston, Keith Cunningham, Elkins, U. G. Young, Jr., Buckhannon, for plaintiff in error.

David D. Johnson, and John C. Morrison, Charleston, John F. Brown, Sr., Elkins, for defendant in error.

HAYMOND, President.

In this action of trespass on the case, instituted in the Circuit Court of Randolph County, the plaintiff, Walter M. Matthews, obtained a verdict for $30,000.00 against the defendant, Cumberland and Allegheny Gas Company, for personal injuries sustained by him as a result of the alleged negligence of the defendant. At the conclusion of the evidence offered in behalf of the plaintiff, and at the conclusion of all the evidence, the defendant made separate motions for a directed verdict in its favor. These motions and a motion of the defendant to set aside the verdict and grant it a new trial were overruled and on July 9, 1952, judgment was rendered upon the verdict in favor of the plaintiff with interest and costs. To that judgment the defendant prosecutes this writ of error in this Court.

The injuries of which the plaintiff complains, which are serious and apparently permanent in character, were sustained by him on a public highway in Upshur County on October 17, 1950, when, in an effort to avoid injury from a rubber hose used by the defendant in purging its nearby high pressure gas service line of air, water and dirt, a collision between the plaintiff and an automobile driven by a third person occurred and which injuries, the plaintiff charges, were caused by the negligence of the defendant in conducting its operation of purging its pipe line.

On and prior to October 17, 1950, the defendant owned and operated a four inch high pressure pipe line between Weston, Lewis County, and Buckhannon, Upshur County, for the transmission of natural gas for delivery to the residents of Buckhannon and other persons who purchased and used its gas. The pipe line was constructed and laid beneath the surface of the land through which it passed and, at and near the place where the plaintiff was injured, it was located parallel to and about fifteen feet north of the northern edge of the improved portion of a public highway designated as U. S. Route No. 119 a section of which, in a generally east to west direction, extends from Buckhannon to Weston. In the locality in which the plaintiff was injured, which is about one half mile west of Buckhannon, the paved surface of the road of concrete construction is sixteen feet in width and the berm on the north side of the concrete is approximately seven and one half feet in width. The distance between the northern edge of the berm and the location of the pipe line is also approximately seven and one half feet and at the edge of the berm and between it and the pipe line is a small ditch which extends east and west and parallel with the road. On the edge of the north berm opposite the point in the highway where plaintiff was struck by the automobile is a mail box which is located between the residence of a man named Haskins to the west and the residence of a man named Peterson to the east. The open space between these dwellings is approximately eighty four feet in width and extends from and north of the road for a distance of at least ninety feet. On the pipe line at a point a few feet west of the mail box is an outlet valve or gate and through this valve or gate gas from the pipe line was released immediately before the plaintiff was injured. The road is level and practically straight with an unobstructed view for a distance of eleven hundred and forty feet west, and for a distance of four hundred and sixty feet east, of the mail box.

During the forenoon of October 17, 1950, employees of the State Road Commission in doing road work accidently punctured the four inch pipe line of the defendant at a point approximately a mile and a half west of Buckhannon, which caused gas to escape or leak from the line and air, water and dirt to enter it. The general field foreman of the defendant, a man named Bailey, having learned of the break, sent a crew of several men to repair it. In making the repairs it was necessary to shut off the supply of gas to the pipe line at a gate in the line about a half mile west of the break and to discontinue the supply of gas from three wells owned by Hanley and Bird, for whom the plaintiff was at the time employed as field foreman, which entered the pipe line of the defendant at a meter house apparently located between the gate and the break and about seven tenths of a mile west of the place where the plaintiff was injured. The general field foreman of the defendant cut off the supply of gas from the Hanley and Bird wells at the meter house and notified the plaintiff, by a telephone call to his wife at their residence in Weston, to shut off the supply of gas at the wells to protect the lines from the wells to the meter house and to prevent the pressure from the wells in the lines from injuring or breaking them. The plaintiff, who had been employed for about five years by Hanley and Bird to look after their gas wells in West Virginia and who was an experienced gas field worker, received the message from his wife while he was engaged in his work at the village of Peel Tree several miles distant from Buckhannon and, in response to the telephone call, came in a truck, which he used in his work, from Peel Tree through Buckhannon to the wells under his charge. He shut off the supply of gas from these wells and then went to the scene of the break in the defendant's pipe line while the repairs were being made. After spending some time there he went back to Buckhannon, telephoned his wife that he would be late in returning home, and then came to the place near the mail box where, after the break in the line had been repaired, the general field foreman of the defendant had decided to purge the line of the foreign substances which had entered it at the break. This was necessary before again turning the gas into the pipe line which supplied the residents of Buckhannon where, because of the break and the suspension of the flow of gas during the time required to repair it, there was a temporary shortage of gas.

In order to turn the gas from the wells of his employers, Hanley and Bird, into the pipe line of the defendant as soon as it was repaired and purged of the foreign substances it was necessary for the plaintiff to keep himself informed of the progress of the repairs and the work of purging the line, and he went to the scene of the repairs and to the scene of the purging of the line for the purpose of learning when to return the supply of gas from the three wells of his employers to the pipe line of the defendant. He was present for that purpose when the work of purging the line was in progress and when he received the injuries for which he seeks a recovery in this litigation.

After the repairs to the line were completed during the afternoon of October 17, 1950, and between four and five o'clock, the exact time being variously fixed by different witnesses, the general field foreman and his crew of several experienced gas field employees went to the valve or the gate on the pipe line near the mail box and began the work of purging the line. In doing that work, which was observed by the plaintiff from a location as to which the evidence is conflicting, the five members of the crew who participated, under the direction of the general field foreman, made an extended outlet which consisted of a line two inches in diameter in which a rubber hose fifty feet in length and two sections of metal pipe each twenty one feet in length were used and connected together. After uncovering the valve on the four inch pipe line by digging a hole in the ground for that purpose, the members of the crew placed the outlet line at approximately right angles to the pipe line and extended it through the open space between the Haskins residence and...