Moidel v. Peoples Natural Gas Co.
| Decision Date | 28 September 1959 |
| Citation | 154 A.2d 399,397 Pa. 212 |
| Parties | Meyer MOIDEL, Selma Moidel and Zachary Caplan, a partnership, t/a Joseph Moidel, Appellants, v. PEOPLES NATURAL GAS COMPANY. |
| Court | Pennsylvania Supreme Court |
E. V. Buckley, Mercer & Buckley, Pittsburgh, Maurice L. Kessler, Pittsburgh, for appellants.
H E. McCamey, Dickie, McCamey, Chilcote & Robinson, Pittsburgh Milton W. Lamproplos, Eckert, Seamans & Cherin, Pittsburgh for appellee.
Before BELL, MUSMANNO, JONES, COHEN, BOK, and McBRIDE, JJ.
This appeal questions the propriety of the action of the Court of Common Pleas of Allegheny County in its refusal to grant a new trial in this trespass action.
At approximately 8:00 p. m., March 1, 1951, an explosion--the incident which gave rise to this litigation--occurred in a one-story building located at 3700 Liberty Avenue, Pittsburgh, a building rented and occupied by Meyer Moidel, Selma Moidel and Zachary Caplan, a partnership, doing business under the name of Joseph Moidel (herein called Moidel). Liberty Avenue runs generally east and west and is intersected by 37th Street which runs generally north and south. In actuality, 37th Street ends in a 'T' intersection at Liberty Avenue but 37th Street as laid out on the city maps crosses Liberty Avenue and extends southwardly to a street (which also exists only on city maps) known as Sassafras Street. From the point where, theoretically, 37th Street runs south of Liberty Avenue the terrain is level for a distance of approximately 60 feet; at that point it drops down abruptly--at approximately a 45? angle--for a distance of 125 feet to Sassafras Street.
East of the point of the theoretical intersection of Liberty Avenue and 37th Street was Moidel's rented building extending approximately 70 feet along the southerly side of Liberty Avenue and in a southerly direction approximately 60 feet to the brow of the hill. At the time in question Moidel conducted a wholesale auto accessory business in this building.
West of the theoretical street intersection--approximately 150 feet from Moidel's business place--was a private dwelling occupied by one Alec Walkowski, his family and a Miss Baldwin.
On the afternoon of March 1, 1951, Moidel, whose building was serviced by the Equitable Gas Company (herein called Equitable), detected the odor of gas fumes in its place of business and reported this condition to Equitable. Shortly thereafter an Equitable employee visited Moidel's business place, discovered a cracked casing in a heating stove and turned off the stove. The Equitable employee made no check of the Equitable gas service lines leading into or through the Moidel building. At the close of the business day Moidel closed the store leaving two pilot lights on two unit heaters burning in the customary manner.
On the evening of March 1, 1951 an explosion occurred in the basement of the Walkowski home causing a fire therein and injuring several persons including one Helen Baldwin. Within a very short time--perhaps a minute [1] --an explosion occurred in the Moidel place of business causing a fire; as a result of the explosion and fire Moidel's place of business was leveled to the ground.
It is undisputed that explosions took place in both Moidel's place of business and the Walkowski home, that the explosion in the former followed that in the latter, and, while the explosions were not simultaneous, a very short period of time elapsed between them.
While the fire raged in the Moidel building another fire broke out at a point in the rear of the Moidel building and approximately half way down the hillside between Liberty Avenue and Sassafras Street. The testimony clearly indicates that this fire was a gas flame which shot out of the ground, extended 15 to 20 feet in the air and continued to burn for several hours until the Peoples' gas line in that area was turned off.
While Peoples Gas Company (herein called Peoples) did not service either the Moidel building nor the Walkowski home, it did own and maintain a 6-inch gas supply line which extended from Liberty Avenue beneath the unopened portion of 37th Street in a southerly direction to the brow of the hill and thence downward to Sassafras Street. The parties stipulated that this particular gas line had been installed in 1904 by another gas company and had been acquired by Peoples in 1914 or 1915 and that the gas which caused flames to shoot into the air partway down the hillside immediately after the Moidel explosion was gas which came from this gas supply line of Peoples.
On April 26, 1951 Peoples' employees dug a trench along its 6-inch gas line southward from Liberty Avenue. At a point approximately 87 feet below the crest of the hill this 6-inch gas line--which had been carrying gas under approximately 35 pound pressure--was found to be completely parted, the separation having occurred at what had been a coupling. At this point was a collar leak clamp which clamp was at the joint on the gas pipe when Peoples acquired the line.
At the time of trial two lawsuits were consolidated, one wherein Helen Baldwin, in occupant of the Walkowski home, was the plaintiff and Peoples the defendant, and the other in which Moidel was the plaintiff and Peoples the defendant. In the former lawsuit the jury returned a verdict in favor of Helen Baldwin and against Peoples. In the Moidel lawsuit the jury first returned to the courtroom with a verdict [2] in the following form: '* * * we, the Jurors, * * * find Peoples Natural Gas Company, sole defendant, guilty of negligence under circumstantial evidence with no liability to [Moidel]'. The court then instructed the jury that it would have to find a verdict either for Moidel or for Peoples. The jurors then retired and returned a verdict, then recorded, which read as follows: Moidel's application for a new trial was refused by the court below, judgment was entered upon the verdict in favor of Peoples and this appeal was taken.
Moidel contends that the court below abused its discretion in refusing to grant a new trial in: (1) that the verdict was against the law and the evidence; (2) that the court committed a fundamental error in failing to instruct the jury on the law of subrogation and (3) that the verdicts in the Baldwin and Moidel lawsuits were inconsistent. Peoples, on the other hand, urges that, since a judgment n. o. v. should have been entered in its favor, any alleged trial errors are immaterial. It contends that, since the record reveals it had no notice prior to the explosion that the joint in the pipe line was defective, it could not be held negligent in failing to discover or repair such defect. In support of this proposition, Peoples argues that a gas company is under no obligation to continually inspect its lines without reference to the existence or non-existence of gas leaks, but that its duty is only to maintain an adequate system of inspection to reasonably detect any gas leaks that might occur.
Accepting arguendo, Peoples' statement of the law as correct, we nevertheless believe that there was sufficient evidence upon this record to warrant a determination by the jury that Peoples was negligent. In Koelsch v. Philadelphia Co., 152 Pa. 355, 362, 363, 25 A....
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