Memphis Consol. Gas & Elec. Co. v. Creighton

• Decision Date: 21 December 1910
• Docket Number: 2,052.
• Citation: 183 F. 552
• Parties: MEMPHIS CONSOL. GAS & ELECTRIC CO. v. CREIGHTON et al.
• Court: U.S. Court of Appeals — Sixth Circuit

183 F. 552

MEMPHIS CONSOL. GAS & ELECTRIC CO. v. CREIGHTON et al.

No. 2,052.

United States Court of Appeals, Sixth Circuit.

December 21, 1910

Jas. F Meagher and E. E. Wright, for plaintiff in error.

Bell Terry & Bell and M. J. Anderson, for defendants in error.

Before SEVERENS, WARRINGTON, and KNAPPEN, Circuit Judges.

SEVERENS Circuit Judge.

This is an action to recover damages for a personal injury to the plaintiff Mrs. Creighton, resulting from the alleged negligence of the defendant.

The facts upon which the action is founded are, substantially, as follows: The defendant, now plaintiff in error, is a corporation doing a general business such as its name implies in the city of Memphis. Among its patrons was a Mrs Bramhall, who owned and occupied a house on Washington street in that city. She had rented out the rooms, one of them to the plaintiffs, who were occupying it. The defendant had made a contract with Mrs. Bramhall for supplying her house with gas in the usual way; that is, the company was to lay its own pipe into the house of Mrs. Bramhall, and she was to provide and install the pipes and fixtures through which the gas would be conveyed to the burners. The defendant laid the pipe to a place in the basement of the house, where it established a meter for measuring the gas to be delivered, and, at a short distance before the gas would come to the meter, it put into the pipe a stopcock or valve by which the flow of gas into the house could be arrested. Mrs. Bramhall had installed the house pipes and fixtures by which the gas would be delivered at the burners, and the supply and use of the gas was begun. Early in the morning of May 10, 1907, it was discovered that several of the rooms of the house were filling with gas to such an extent that a lady in a room adjoining the plaintiffs' had become partly asphyxiated and was not long after taken to a hospital. At 8 o'clock Mrs. Bramhall attempted to turn off the gas at the stopcock in the basement, but she was unable to turn it; and a man in the house tried to, but could not close the valve. Thereupon she telephoned the gas company. Mrs. Bramhall testified to this and said: 'I told them the gas was escaping and there was a lady in the house asphyxiated and made unconscious, and we could not cut the gas off; sister and I had tried to and we wanted some one to come and do it right away. They said they would send some one right away.'

This, according to Mrs. Bramhall, was between 8 and 9 o'clock. Instead of sending a man 'right away,' the 'complaint clerk' made out a 'complaint ticket,' and some time before noon sent it to the headquarters of the gas-fitters, and a gas-fitter who got the ticket arrived on the scene at about 2 o'clock. Meantime, shortly before noon, Mrs. Bramhall, the gas still continuing to escape, was trying to find the place from which it was leaking. To do this she says, when testifying, she lighted a match, and tried the joints of the fixtures. She carried her match along the joints of a fixture back to the cap which covered the opening for the pipe in the wall. The gas coming out around the pipe took fire from the match, and the pent-up gas behind the ceiling exploded. The lath and plaster on the opposite room were blown off, the flooring blown upward, and Mrs. Creighton, who was sitting there, was seriously injured. It subsequently appeared that the gas had escaped through a sand hole in the pipe inside the partition wall.

Upon the trial at the close of the evidence, in which there was no material conflict, counsel for the defendant requested the direction of a verdict in its favor. This the court refused, and the counsel saved an exception. The jury found a verdict for the plaintiffs. Several exceptions to the rulings of the court upon questions of law were saved for the defendant. For the purpose of our consideration we have been aided by a summary of his points by counsel for the now plaintiff in error. But before considering them we should notice the claim the counsel make in respect to the rule of procedure and the duty of the court to give peremptory instructions when the evidence is such that no reasonable man could doubt as to the proper conclusion to be drawn from it. We assent to the proposition thus implied, and agree that the court is so bound. The rule is so well settled that it is not to be questioned. We come then to the summary of questions to be determined as stated by counsel as follows:

'First. The defendant owed the plaintiffs no legal duty to cut off the gas flowing from its service pipes into the house pipes of the premises, No. 218 Washington avenue, and, being under no legal duty so to do, the plaintiffs cannot recover on a cause of action solely based upon a negligent failure to cut off said gas.

'Second. The admitted proof is to the effect that the explosion and resultant injury to the plaintiff, Mrs. Lawrence Creighton, would not have occurred but for the act of Mrs. B. C. Bramhall, the owner and proprietor of the house, in applying a lighted match to the escaping gas, and therefore the proximate cause of the explosion was not the alleged negligence of the defendant in failing to cut off the gas, but was brought about by an independent, intervening, wholly unlooked for and unexpected cause which superseded any negligence upon the part of the defendant, and therefore there was no natural and continuous sequence uninterruptedly connecting the breach of duty with the damage as cause and effect.

'Thir

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