Murphy v. The Ludowici Gas & Oil Company

• Decision Date: 10 July 1915
• Docket Number: 20,066
• Court: Kansas Supreme Court
• Parties: ROY MURPHY, a Minor, etc., Appellee, v. THE LUDOWICI GAS & OIL COMPANY, Appellant

150 P. 581

96 Kan. 321

ROY MURPHY, a Minor, etc., Appellee, v. THE LUDOWICI GAS & OIL COMPANY, Appellant

No. 20,066

Supreme Court of Kansas

July 10, 1915

Decided July, 1915.

Appeal from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TRIAL--Instructions--To be Construed Together. The whole of the instructions to a jury must be taken into consideration to determine whether or not a part of a sentence taken out of the instructions was erroneous.

2. GAS EXPLOSION--Personal Injuries--Pain and Anguish--Permanent Injuries--Instructions. In an action for personal injury, the failure of the court, in the instructions to the jury, to limit the plaintiff's recovery for pain and anguish and for permanent injury to the amounts alleged for each, will not compel the reversal of a judgment where no instruction fixing such limits was requested.

3. MINOR--May Recover for Pain and Suffering and Permanent Injury. An infant can recover damages for pain and suffering and permanent injury caused by the negligent act of another. The failure of the court to limit the recovery, on account of inability to work and earn money, to the time after reaching his majority, will not compel a reversal of a judgment for the infant, where no instruction was requested limiting such recovery.

4. NEGLIGENCE--Gas Explosion--Injuries--Instructions--Degree of Care Required of an Infant. Instructions that tell the jury it was the duty of the plaintiff, an infant, to exercise that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances, that give the rules in regard to the negligence of an adult and the negligence of an infant of tender years, and that tell the jury to determine from all the facts the plaintiff's capacity and the degree of prudence that should be exacted of him, are sufficiently favorable to the defendant.

5. SAME--Contributory Negligence. The instructions concerning the contributory negligence of the plaintiff have been examined, and no substantial error is found therein.

6. TRIAL--Request for Immaterial Findings. It is not error to refuse to submit questions to the jury which, if answered, can not assist in determining what judgment shall be rendered.

7. GAS EXPLOSION--Injury to Minor--Verdict Not Excessive. In an action for personal injury, where the plaintiff was severely burned, suffered intense pain, is permanently disfigured in face and body, and is otherwise permanently injured, a verdict for $ 12,000 is not so excessive as to compel a reversal or modification of the judgment.

8. SAME--Care Required in Laying Pipe Line Along Public Highway--Evidence. One who conveys natural gas in pipe lines laid on the ground in a public highway must exercise the highest degree of care to avoid injury to those using the highway, and in an action for damages caused by the ignition and explosion of natural gas in a public highway, where the explosion was caused by a traction engine being driven over the pipe line and breaking it, and where the pipe line, covered with growing grass and weeds, was laid on the ground, in the highway, about seven feet from a hedge fence along the side of the highway, it was not error to refuse to admit evidence tending to show that others engaged in the transportation of natural gas did so by means of pipe lines laid on the ground in public highways.

9. SAME--Contributory Negligence. It is not contributory negligence on the part of one who is ignorant of the existence of a gas pipe line in a public highway to enter upon that highway with a traction engine and fail to look for hidden pipe lines, although in a community where natural gas pipe lines are known to be laid in public roads.

George Campbell, of Coffeyville, Theodore Schmidt, Frank J. Loesch, and Timothy J. Scofield, all of Chicago, Ill., for the appellant.

A. R. Lamb, of Coffeyville, W. E. Hogueland, and G. H. Lamb, both of Yates Center, for the appellee.

OPINION

MARSHALL, J.

This is an action for damages for personal injury. The plaintiff recovered judgment for $ 12,000. The defendant appeals.

The defendant was engaged in drilling for gas in Montgomery county, Kansas, and had laid an inch gas pipe line from a gas well on near-by premises to its drilling machinery. This pipe was laid on the surface of a public highway, about seven feet from a hedge fence on the west side of the highway. On the east side was a wire fence. The road was about forty feet wide, about twenty feet of which, in the center, had been graded, leaving shoulders on the sides of the graded work eight or ten inches high. The accident occurred on the 23d day of July, 1914. Growing weeds and grass to the height of about six or eight inches concealed the gas pipe. The plaintiff, a boy fifteen and a half years old, was working for his father, assisting in drawing a threshing machine outfit out of an adjoining field onto the highway at the place of the accident. The plaintiff was seated on the engine, guiding it by the steering gear, under the direction of his father, who was also on the engine controlling the power. The length of the outfit was 30 to 35 feet. The engine was a coal-burning steam engine equipped with a damper to shut off air from the firebox. Two workmen were sent ahead to prepare a way to the road. This they did by pulling staples out of posts that held the wires and standing on the wires so that the engine and separator could pass over them. Neither the plaintiff nor his father, nor any of the workmen, inspected the road for any purpose. The road was approached from a northeasterly direction. To get the threshing outfit into the highway it was necessary to cross the graded portion of the road with the traction engine and get it onto the ungraded portion on the west side. There the engine ran onto the gas pipe. A hind wheel broke the pipe, releasing the gas. The engine's damper was open, and through it some of the escaping gas got into the firebox, when it exploded. The explosion threw the plaintiff from his seat on the engine to the ground in the flame, where he was momentarily unconscious. Upon recovering consciousness he rolled out of the flame, attempted to extinguish the fire in his clothing, could not do so, ran to one of the workmen, who tore the burning clothing from the plaintiff's body. He was badly burned, although there were no internal burns. He was burned on his knees, on his right hip, on his right side below the arm, on both arms and shoulders, across his breast, and on his face, neck and ears. These burns were of first and second degree; a first-degree burn varying from redness to a blister, and a second-degree being where a portion of the skin is charred or killed. The burn on the right arm was mostly second degree, and on the hip was a second-degree burn several inches square. On the right side of the face, under the jaw and ear and on the rim of the right ear, were burns of second degree. All the rest were first-degree burns. There were no third-degree burns. The burns were very painful. During the first three weeks after his injury the plaintiff was obliged to lie on his back most of the time with his arms extended and supported on pillows, and during the second week for a while it was necessary to grasp his right hand and hold the arm off the bed to relieve the pain. In order to induce sleep, the doctor gave the plaintiff morphine at night during the first two weeks. The right ear had been burned worse than any other part of his body. Abscesses formed in the upper part of this ear, due to infection. There were no other abscesses. About five weeks after the injury there was a swelling in the left leg due to an interference of circulation, possibly due to infection. To correct this condition the doctor advised the use of an elastic bandage on the leg, and the plaintiff was wearing it at the time of the trial. At this time, six months after the accident, all the plaintiff's burns had healed. He had several large scars on his body and in his face. A portion of his right ear was gone. There was a drawing of the skin about the chin, neck, and throat. His scars were exhibited to the jury. The appearance of the plaintiff's face and body does not seem to be described in the record, beyond the statement of the scars left. It does appear that these scars will never entirely disappear, and that the skin tissue of the right arm has been destroyed and can not perform its function. It appears that none of the muscular tissues was burned, but the muscles of the right arm and of the left leg were affected by the burns, and they probably will never be restored to their normal condition.

(1) The first complaint is of the following language used in the instructions:

"To entitle plaintiff to a recovery in this action, he must show by the evidence that the injury complained of was occasioned by the carelessness and negligence of the defendant alleged and set up in the petition."

This is about half of the sentence from which it is taken. It is but a small part of the instructions on the defendant's negligence. Neither the sentence from which this quotation is taken nor the whole of the instruction concerning negligence is objectionable. This court has said many times that instructions are to be construed as a whole, and if not erroneous when so construed, no one of them will be held erroneous. (The State v. Dickson, 6 Kan. 209; The State v. Miller, 35 Kan. 328, 10 P. 865; Lawder v. Henderson, 36 Kan. 754, 14 P. 164; The State v. Yarborough, 39 Kan. 581, 588, 18 P. 474; C B. U. P. Rld. Co. v. Andrews, 41 Kan. 370, 21 P. 276; Cain v. Wallace, 46 Kan. 138, 26 P. 445; Hays v. Farwell, 53 Kan. 78, 35 P. 794; The State v. Atterberry, 59 Kan. 237, 52 P. 451; ...