Nash v. St. Joseph Gas Co.

• Decision Date: 07 November 1921
• Docket Number: No. 13733.,13733.
• Parties: NASH et al. v. ST. JOSEPH GAS CO.
• Court: Missouri Court of Appeals

234 S.W. 360

NASH et al. v. ST. JOSEPH GAS CO.

No. 13733.

Kansas City Court of Appeals. Missouri.

November 7, 1921.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

"Not to be officially published."

Action by A. E. Nash and another against the St. Joseph Gas Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Sherman, Stigall & Kranitz, of St. Joseph, for appellant.

William E. Stringfellow, of St. Joseph, for respondents.

TRIMBLE, P. J.

Defendant manufactures and sells artificial gas, distributed throughout the city of St. Joseph, Mo., by means of pipe lines buried in the streets, and from which connecting pipes lead to the houses and patrons to be served. Plaintiffs' residence was located on one of these streets; and in front thereof, just inside the curb, he owned a line of shade trees, three of which died. They brought this suit against the defendant for damages, alleging that the trees were killed by gas which the defendant negligently allowed to escape from its main in that street.

A jury heard the evidence and returned a verdict for plaintiffs in the sum of $268, and the defendant has appealed. The only contention made is that the demurrer to the evidence should have been sustained. There was ample evidence of a leak in defendant's main at a point about 40 feet from plaintiffs' property line, and of defendant's negligence in permitting the gas to escape. This is not denied. The gist of defendant's contention is that there was no evidence that plaintiffs' trees were killed by gas, but that, on the contrary, the evidence showed they died from other causes.

It is well settled that an appellate court will not be justified in disturbing the verdict if there is any substantial evidence tending to show, or disclosing facts from which the jury could reasonably draw the inference, that the trees were killed by gas rather than by other causes. Taylor v. St. Joseph Gas Co., 185 Mo. App. 537, 172 S. W. 624.

It is not enough that plaintiffs offer evidence from which it appears that the trees died either because of the gas or from other causes, or that it is as likely that they died from the one as from the other. Plaintiffs have the burden of proof, and, in order to recover, must maintain that burden by bringing evidence which will incline the scale to the reasonable conclusion that the trees died on account of the gas instead of from other causes. On the other hand, it is not necessary to plaintiffs' recovery that any witness should testify positively and unequivocally that the trees were killed by gas; all that is necessary is that the evidence be such as to reasonably justify the jury in reaching the conclusion that the gas, rather than some other cause, did it.

The evidence is that gas escaping from an underground pipe, by attacking the small, fibrous rootlets put forth by the larger roots, and at some distance from the tree—through which the tree derives sustenance from the soil—will kill the tree, the length of time it takes to do so being dependent upon the extent to which the tree is exposed thereto. If there is a sufficient amount of the gas to extend to the top of the ground, it will kill the grass also. But the gas will follow along the roots, and by suffocation of the fibrous rootlets thereof will kill the tree, even though the gas does not ascend to the top of the ground sufficient to kill the grass.

It is defendant's contention that the trees were not killed by gas, but that, under the conditions in which they were situated, 35 years was about the term of their life; that they were located in a brick sidewalk near a stone gutter and macadam pavement, on a sloping street, whereby they were deprived of sufficient moisture to preserve their life; that they...