McGaugh v. City of Fulton
| Citation | 205 S.W.2d 547,356 Mo. 1122 |
| Decision Date | 08 September 1947 |
| Docket Number | 40115 |
| Parties | Earl McGaugh, Appellant, v. The City of Fulton, Mo., a Municipal Corporation |
| Court | United States State Supreme Court of Missouri |
Motion for Rehearing or to Transfer to Banc Overruled November 10 1947.
Appeal from Audrain Circuit Court; Hon. Frank Hollingsworth, Judge.
Reversed and remanded.
D M. Cuthbertson for appellant.
(1) If a sewer, whatever its plan, or the conditions under which installed, is so improperly constructed and maintained as to cause a positive or direct invasion of combustible gases into and upon the property of another, directly contributing to an explosion causing injury and damage the owner of said sewer is liable for damages arising therefrom. Windle v. City of Springfield, 8 S.W.2d 610; Smith v. Sedalia, 152 Mo. 283; Foncannon v. Kirksville, 88 Mo.App 279. (2) Evidence of faulty construction and maintenance of sewer mains by defendant, causing excess accumulation and retention of combustible gases in said sewer, the leak of said gas into plaintiff's basement through no fault of plaintiff and consequent explosion and injury to plaintiff makes a prima facie case also on the theory that evidence showing break in defendant's gas main plus explosion causing injury, and exclusion of all other sources of presence of gas in plaintiff's basement than defendant's mains, plus presence of combustible gas in plaintiff's basement immediately after the explosion makes prima facie case for the jury. Nomath v. Kansas City Gas Co., 223 S.W. 975; Sipple v. Gas Light Co., 125 Mo.App. 81; Paden v. Van Blarcom, 181 Mo. 117. (3) The authoritative rule in regard to gases requires not only a careful laying of sound pipes, but also requires an efficient system of inspection, oversight and superintendence of its mains and pipes, and must repair defects in same whether caused by its own fault or not; If leaks occur because of faulty construction or otherwise, through company's fault and no fault of plaintiff, it is liable without notice for any resulting injury to plaintiff, person or property. Vaughn v. Kansas City Gas Co., 159 S.W.2d 690; Taylor v. St. Joseph Gas Co., 185 Mo.App. 537. (4) Demurrer to evidence supporting allegations that Gas Company failed to construct, maintain sound pipes, inspect and repair them resulting in damage to plaintiff by escaping gas, held properly overruled. Notice of defect in pipes and mains will be presumed under circumstances, where gas company by exercising proper diligence might have timely discovered and remedied defect. Mesmer v. St. Louis County Gas Co., 42 S.W.2d 963. (5) As a matter of law, the breaking of a pipe and the consequent escape of gas, accompanied by explosion, proved negligence. Sipple v. Gaslight Co., 125 Mo.App. 81. (6) It is not necessary to plaintiff's recovery that any witness should testify positively and unequivocally that natural gas entered defendant's sewer main from break in defendant's gas main; all that is necessary is that the evidence is such as to the proximity of the gas main and sewer main and the construction of same as to reasonably justify the jury in reaching the conclusion that said natural gas did enter the sewer main from said break in the gas main, and thus into the plaintiff's basement and caused the explosion. Streck v. St. Louis Co. Gas Co., 58 S.W.2d 487; Nash v. The St. Joseph Gas Co., 234 S.W. 360. (7) Jury entitled to consider reasonable probabilities in determining whether gas causing the explosion actually escaped from defendant's gas main into defendant's sewer main and thus into plaintiff's basement, or whether it was sewer gas accumulated and retained in defendant's sewer through negligent construction and maintenance of sewer mains and system, leaking and seeping into the basement of plaintiff's house, as long as evidence shows it was one or the other both from defendant's negligence and mains together with presence of combustible gas in said basement directly after the explosion. Nomath v. Kansas City Gas Co., 223 S.W. 975. (8) Owing to the very dangerous character of natural Gas and Sewer gas, and because of their well known tendency to escape from the mains and percolate through the earth into cavities or openings and there burn or explode, causing great injury, the defendant is charged with a very high degree of care in the control thereof. Nomath v. Kansas City Gas Co., 223 S.W. 975; Sipple v. Laclede Gaslight Co., 125 Mo.App. 81, 102 S.W. 608. (9) A gas company is held to a degree of care commensurate with the dangerous character of the commodity it handles. Taylor v. St. Joseph Gas Co., 185 Mo.App. 537; Brauer v. St. Louis County Gas Co., 238 S.W. 519. (10) Plaintiff's exhibits, K. and L., ordinances of the City of Fulton, Missouri, providing for the proper manner for the installation of sewer house appliances, and requiring the City plumbing inspector to examine said house appliances to insure that they were installed according to requirements before permitting said house appliances to be connected to the sewer mains of the defendant city, should have been admitted in evidence. Bean v. City of Moberly, 169 S.W.2d l.c. 398; Perrigo v. City of St. Louis, 185 Mo. 274; Myers v. Kansas City, 108 Mo. 480. (11) Evidence offered by plaintiff by witness, J. G. Hawthorne expert chemical engineer to the effect that there was a code on approved designs for installation of sewer systems in the state of Missouri, and that the defendant city had not complied therewith, and that said failure to so comply with said code was a major contributing cause of the explosion and consequent injury to plaintiff, was admissible to show defendant's negligence and was erroneously excluded. Zesch v. Abrasive Co., 193 S.W.2d l.c. 585. (12) An expert witness, who by experience, observation and knowledge is peculiarly qualified to draw conclusions from facts in evidence, is for the purpose of aiding the jury, permitted to give his opinion and such expert testimony is admissible for the purpose of showing potential cause of the explosion. Stephens v. Kansas City Gas Co., 191 S.W.2d 601. (13) Whether the explosion was of natural gas alone, or sewer gas alone, or a combination of both is not involved in ruling the demurrer. James v. Bailey Reynolds Chandelier Co., 30 S.W.2d 118. (14) Where an injury is the result of concurring causes, in respect of one of which the party sought to be charged was negligent, he cannot escape liability because he neither knew nor was chargeable with notice of the other cause. Start v. Natl. Newspapers Assn., 253 S.W. 42. (15) Where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient cause, without which the injury would not have resulted, to as great an extent, and that such other cause is not attributable to the person injured. Buckner v. Stock Yards Horse, etc., Co., 221 Mo. 700, 120 S.W. 766; Hohimer v. City Light, etc. Co., 218 Mo.App. 138, 262 S.W. 403; Godfrey v. Payne, 251 S.W. 133; Carr v. St. Louis Auto Supply Co., 293 Mo. 562, 239 S.W. 827; Krehmeyer v. St. Louis Transit Co., 220 Mo. 639, 120 S.W. 78; Billard v. Kansas City Power Co., 298 S.W. 131; Holmes v. Missouri Pac. R. Co., 207 Mo. 149, 105 S.W. 624; Thompson v. Slater, 197 Mo.App. 247, 193 S.W. 971. (16) A plaintiff injured in consequence of the concurring negligence of defendant and that of a third person, or with some other independent concurring or succeeding cause may sue the defendant therefor. Krehmeyer v. St. Louis Transit Co., 120 S.W. 78, 220 Mo. 639. (17) Plaintiff under the evidence adduced was not contributorily negligent in not putting cap on cleanout pipe as evidence affirmatively showed that he had no knowledge either actual or constructive of explosive qualities or quantities of gas either sewer or natural gas. Stephens v. Kansas City Gas Co., 191 S.W.2d 601.
T. A. Faucett and Fry, Edwards & Wright for respondent.
(1) The court did not err in sustaining respondent's motion for judgment in accordance with the motion for directed verdict. Fuchs v. City of St. Louis, 167 Mo. 620, 67 S.W. 610; McQuillin, Municipal Corporations (2nd Ed.), secs. 1568, 2870. (2) Appellant's Exhibits K and L were properly excluded from evidence. Bean v. City of Moberly, 350 Mo. 975, 169 S.W.2d 393. (3) The testimony of witness Hawthorne in answer to hypothetical questions was properly excluded. DeDonato v. Wells, 328 Mo. 448, 41 S.W.2d 184; Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 833; 22 C.J. 711, sec. 800. (4) The testimony of witness Hawthorne regarding the State Board of Health approved design for the installation of sewer systems in the State of Missouri cannot be urged as error on appeal for failure to make an offer of proof. Byam v. Kansas City Public Service Co., 328 Mo. 813, 41 S.W.2d 945; 3 C.J. 825, sec. 736.
OPINION
In this action by Earl McGaugh against the City of Fulton, for personal injuries resulting from an explosion, the court sustained the city's motion for judgment in accordance with its previous motion for a directed verdict after a jury had been unable to agree upon a verdict. The court sustained the motion upon the specific grounds that the plaintiff's evidence failed to establish a cause of action against the city or to show any causal connection between the alleged negligence of the city and the explosion and injuries. Upon this appeal by McGaugh the sole question then is whether his evidence reasonably demonstrates negligence on the part of the city, causal connection, and consequent prima facie liability.
McGaugh and his family were tenants in a four-room frame house at Eighth and Walnut Streets....
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