Niswander v. Kansas City Gas Co.
| Decision Date | 05 June 1944 |
| Docket Number | 20438 |
| Citation | 181 S.W.2d 165 |
| Parties | Myrtle I. Niswander, Respondent, v. Kansas City Gas Company, Appellant |
| Court | Kansas Court of Appeals |
APPEAL FROM JACKSON CIRCUIT COURT.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 1000. Defendant has appealed.
The facts show that plaintiff, on March 8, 1939, received serious burns as a result of an explosion, which occurred in an oven of a stove. The stove had been sold to her by the defendant. The case was tried and submitted to the jury by plaintiff under the res ipsa loquitur theory.
The facts further show that the stove was purchased by plaintiff on November 16, 1938 and, on November 22nd, of that year, it was delivered to plaintiff's residence, in Kansas City. The evidence shows that it was properly installed by plaintiff's son. The stove in question was a table top model. The oven was to the right. To the left of the oven and on top of the stove were four burners. The gas was turned on in the oven, and to each burner, by individual valves. The valves were opened by means of a handle located immediately below the top burners.
The handle for the oven burner was in the middle and the thermostat controlling the temperature in the oven was located immediately under the oven handle. The burner supplying the heat to the oven, was located in the broiler compartment immediately below the oven, and some distance from the valve. This burner was lighted by applying a match to a lighter tube attached to the burner. The open end of the lighter tube was at a hole in the bottom of the oven.
When plaintiff purchased the stove she was instructed by defendant's agent as to how to light it, as follows "Set the thermostat and turn the gas on full and strike the match and hold it down here at the bottom of the oven." Plaintiff testified that . The trouble was that, when she attempted to light the oven, it would . She had attempted to light the oven only two or three times prior to the explosion in question and she always had the same experience. Each time she would wait for five or ten minutes leaving the oven door open for the accumulation of gas to get out of the oven. Then she would try to light it again. Each time that she had this trouble she called up the defendant and it would send its agent out, who worked on the stove or did something to it, and he would report to her that it was "all right".
She further testified that no one ever used the stove, or attempted to light the oven, save herself; that she had had 31 years experience in using gas ranges; that the last time she called the defendant was possibly four or five days before the explosion and defendant worked on the stove two or three days before the latter event. She testified that she did not know when she had last used the oven before the explosion, but "I hadn't baked for several days".
With reference to the occurrence at the time of the explosion, she testified that she first opened the oven door, then set the thermostat at 450, struck a match, and then turned the gas "on full"; that she struck the match just about the time that she turned on the gas; that she did it all "practically at the same instant"; that when she struck the match "it blew me against the kitchen door **** it knocked me down"; that it blew her about 4 feet.
She further testified that, on the previous occasions, when she had trouble lighting the stove, she did not get "any puff out like" the one at the time of the explosion.
The testimony on the part of the defendant tends to show that on December 5, 1938, its agent inspected and adjusted "all the burners O.K."; that this was the only time that the burners were adjusted. Whether this adjustment was made because of a call from plaintiff does not appear. On March 9, 1939, the next day after the explosion defendant, having been notified thereof, caused the stove to be inspected and found the oven burner in proper adjustment, but the lighting tube was partly stopped up with pieces of burnt match stumps, which restrained the gas from coming up to the light match when held over the opening; that when the matches were cleaned out, the burner lighted perfectly through the lighting tube; that the matches in the lighting tube would tend to block the flow of gas coming through it; that "if a person didn't light it and went back later and attempted to light it there without airing it out * * * * there would be an accumulation of gas".
Defendant insists that the court erred in failing to give its...
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