Nomath Hotel Company v. Kansas City Gas Co.

• Decision Date: 10 May 1920
• Parties: NOMATH HOTEL COMPANY, Respondent, v. KANSAS CITY GAS CO., Appellant
• Court: Kansas Court of Appeals

223 S.W. 975

204 Mo.App. 214

NOMATH HOTEL COMPANY, Respondent, v. KANSAS CITY GAS CO., Appellant

Court of Appeals of Missouri, Kansas City

May 10, 1920

Appeal from Clay Circuit Court.--Hon. Frank P. Divelbiss, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Cooper Neel & Wright for respondent.

Simrall & Simrall, J. W. Dana and Charles M. Miller for appellant.

OPINION

TRIMBLE, J.--

A terrific explosion of gas wrecked the basement office and kitchen of plaintiff's Cafe located near the southeast corner of 12th street and Baltimore Avenue in Kansas City, Missouri. This suit was brought against the gas company resulting in a judgment for $ 5500 from which the defendant has appealed.

Baltimore Avenue runs north and south, and the basement, which is on the east side thereof, began under the sidewalk at the concrete wall under the curb line, and, with a north and south width of about fifty feet, ran back east to an alley. The basement was divided into three rooms: One, called the office room, about 8 by 20 feet, was in the southwest corner under the sidewalk and extended from said concrete wall at the curb line east to the limit of the room's dimension in that direction; another, the "service-bar room," where drinks were prepared to be served in the cafe, was immediately north of the office room; and the third, which was the kitchen, occupied the rest of the basement and extended from the two small rooms west about ninety feet to the aforesaid alley.

The walls of the first mentioned or office room, on all sides except the east, were of heavy concrete foundational construction; while the east wall, the partition between the office and the kitchen, was a light six inch wall of terra cotta. The office room had a door on the east side close to the south wall permitting entrance thereto from the kitchen but otherwise it was without opening, having neither window nor transom. The sidewalk above it consisted of concrete slabs with heavy art-glass prisms or lenses therein to allow light to enter and shine through the glass in the ceiling, which was about nine or ten feet above the floor. In the servicebar room was the gas meter and also a gas "booster" pump, operated by a small electric motor, the switch for turning on the current of which was in the northwest corner of the office room close to the ceiling. There were no gas pipes, connections or gas fixtures of any kind in the office room. The gas service pipe entered the service-bar room where the meter was.

In the center of the kitchen was a hood having a ventilating shaft which ran east to the end of the room and thence up to the outer air; and over the end of this shaft was a fan to draw the smoke, fumes, etc., from the kitchen and thus keep it properly ventilated.

The door between the kitchen and the office room had constantly remained open from the time the cafe was opened for business in November, 1917, until Friday night, March 29, 1918, preceding the explosion (which occurred on Sunday morning March 31, about 11 o'clock.) On said Friday night, however, this door was for the first time closed and locked and the entire cafe was closed and remained so until Sunday morning as hereinafter related.

On said Sunday morning about 10:3O o'clock, a kitchen employee, who had begun working there a month previous, together with the chef and a pot-washer, who had been employed there only three or four days, and the assistant engineer, entered the basement after getting the keys from the proper authorities. The employees were intending to do some work therein, but preparatory thereto, desired to start the gas range in order to cook themselves something to eat. The chef, therefore, directed the kitchen employee, Enderman, to turn on the switch to the gas pump in order to pump gas into the range. Enderman unlocked the door to the office room, went in and got upon a chair to turn on the switch, located as we have said in the northwest corner near the ceiling. The turning on of this switch always made a spark and did so this time, but nothing unusual happened. Enderman came out of the office room and closed and locked the door. The mere turning on of the switch started the gas pump to working, but in about three or four minutes the chef called to him and said there was no gas and that he might as well turn off the switch. Enderman again unlocked the office room door, got upon the chair and turned off the switch. As he did so a spark was generated as before, and a bluish flickering flame, starting in the switch box, went around over the box following the ceiling a short distance and then the explosion occurred. It took an eastward direction and tore out the east terra cotta wall and wrecked everything in its pathway eastward into and half way through the kitchen, throwing over and partially wrecking a one-and-one-half ton refrigerator, moving the gas range and killing one of the men in the kitchen. In the office room the explosion tore through the ceiling, lifted up and broke the sidewalk concrete slabs containing the prism lights, and Enderman was thrown from the chair to the floor, luckily escaping uninjured, doubtless because he was in the corner at the angle formed by two massive walls of masonry where the full force of the explosion was prevented from exerting itself in that direction.

The petition set up that, for the purpose of supplying natural gas to the general public, the defendant maintained mains, pipes and other conduits under the public streets of Kansas City and particularly a certain main running north and south under the east side of Baltimore Avenue, equipped with a valve and valve box to control the flow of gas into plaintiff's basement; that said main, pipes and pipe lines under Baltimore Avenue were close to a water pipe, fire hydrant, watervalve and valve box connected with said basement so that natural gas escaping from the former would seep and leak into and around the latter and from thence get into and accumulate in said office room. The petition then went on to charge that defendant--

"Negligently and carelessly caused and permitted a large quantity of natural gas to escape from the gas main, valve and valve box, pipes, piping and other conduits, so owned, operated and maintained by said defendants in and under the east side of Baltimore Avenue aforesaid adjacent to the premises so occupied by the plaintiff and to leak and seep from defendant's said main valve and valve box, pipes and pipe lines, through and into and around the said water pipes, valve, valve box and fire hydrant and thence through and around said water drain or waste pipe into plaintiff's basement, and also through the walls and foundations of said seven story buildings in various places."

The defendant denied generally, and then charged contributory negligence in that defendant had, contrary to an ordinance of Kansas City, installed the gas or booster pump without a permit from the plumbing supervisor or the approval of the gas inspector and that in the installation of said pump the pipes had been disconnected in violation of said ordinance, and that if an explosion of natural gas occurred it was caused by a spark from said pump or its appliances.

The first question for our determination is whether the demurrer to the evidence should have been sustained? With reference to this, defendant's contention should be divided into several claims and each considered separately: First, that there was no evidence tending to show that the explosion was one of natural gas defendant was engaged in distributing; second, that even if there be sufficient evidence from which the jury could say the explosion was of such natural gas, there was no evidence tending to make it more reasonably probable that the gas came from a source which would render defendant liable rather than that it escaped from some disconnection or vent in plaintiff's basement for which defendant would not be liable; third, even if it was natural gas that exploded, there was no evidence of any leaks or breaks in defendant's pipes or main or that gas escaped therefrom; fourth, that even if gas leaked from defendant's pipes or main, there is no evidence tending to show negligence on the part of the gas company.

Considering these claims in their order, we are satisfied that the first is untenable. There was ample evidence to show that it was defendant's natural gas, and not sewer gas, that exploded and wrecked the basement. The man who installed the plumbing in the building and basement when constructed, testified that at the time of such construction and before any gas connections were made or sewer connections completed he was working near the west wall of the office room and thought he detected an order of natural gas which seemed to come through said wall. The explosion dislocated some pipes connected with the refrigeration plant and allowed ammonia fumes to escape and fill the basement, so that an immediate entrance into the same could not be made; but on the day of the explosion, and as soon as these ammonia fumes which were non-explosive could be drawn out, an investigation was made which was participated in by the city Fire Department, representatives of the gas company, the engineer of the building, the architect who designed and superintended its construction, and the plumber who installed its plumbing. The building, of which the basement was a part, was one of seven stories in height and was comparatively new. The investigation made by the above named authorities disclosed that the sewer drainage system was complete and well equipped; its connection with the street sewer was at the east end of the basement; the pipes of said drainage system, and the devices thereon to prevent the entrance of sewer...