Public Service Co. of Indiana v. Dalbey
| Decision Date | 19 April 1949 |
| Docket Number | 17792. |
| Citation | 85 N.E.2d 368,119 Ind.App. 405 |
| Parties | PUBLIC SERVICE CO. OF INDIANA, Inc. v. DALBEY. |
| Court | Indiana Appellate Court |
Rehearing Denied June 3, 1949.
On Rehearing.
Appeal from Johnson Circuit Court; Grant Rogers, Judge.
Branigin & Branigin, of Franklin, and William P. Evans and Owen S. Boling, both of Indianapolis for appellant.
Elmon M. Williams, of Indianapolis, and Gilbert Butler, of Martinsville, for appellee.
This action was by appellee against appellant to recover for injuries received from an explosion of natural gas.
The complaint alleges negligence on the part of appellant in the installation and maintenance of gas lines as being the cause of the gas escaping into the basement of appellee's house.
The appellee on November 8, 1944, lived on highway No. 37 about one mile southwest of Martinsville, Indiana. The appellant's high pressure six inch main is along the north side of said highway on the same side of the highway as the appellee's house. Natural gas accumulated under appellee's house, and in the basement from a leak from appellant's high pressure line, and was ignited when the appellee turned off an electric switch in the basement, and an explosion followed, blowing the side out of the house, and the building was immediately consumed by fire, and the appellee was severely burned about the hands, arms, face neck and back, and was scarred, and his appearance marred, and some of said injuries are permanent.
The evidence further showed on the arrival of neighbors the next morning after the explosion the night before, gas was escaping from the ground, and between cracks in the concrete, between the main, and the foundation of the house, and between the cracks in the concrete floor inside the foundation wall of the house. The appellant was called and their employees came and dug down to the main where the connection comes into the house and found a leak at said service connection where the saddle is a part of the fittings on the gas main. A gasket in the saddle was cracked and the high pressure gas forced an opening through this defective gasket. The life of the saddle is indefinite or more than 15 years as shown by the evidence. The connections between the pipe line to the dwelling of the appellee were loose as shown by the evidence.
The only error assigned and relied on for reversal was the trial court overruling appellant's motion for a new trial.
The following questions are raised by the appellant under this assignment of error:
1. The appellant contends that the giving of court's instruction No. 11 was reversible error.
2. The verdict of the jury is not sustained by sufficient evidence.
3. The verdict of the jury is contrary to law.
4. The court erred in excluding from the evidence in this cause defendant's exhibits #6 and #5.
5. The refusal to give appellant's requested instruction No. 1A.
6. The appellant contends that the damages are excessive.
Error is predicated by appellant upon the giving of Instruction No. 11 by the court of its own motion. The court gave the following instruction:
'Negligence and carelessness, applied to both plaintiff and defendant, means the failure to exercise ordinary care, that is such care as ought to be expected of a reasonably prudent person under similar circumstances.'
Appellant objects for the reason that the instruction used 'ought to be expected' and required that the defendant be held to the exercise of a greater duty than ordinary care under the circumstance defined by law.
In the case of Curran v. A. H. Stange Co., 1898, 98 Wis. 598, 74 N.W. 377, 381, the court had before it an instruction using the word 'ought' for consideration. The court said 'it is quite apparent that 'would' is a strictly proper word, but was it error to use the world 'ought'? We think not * * *
'It will be found frequently used in the text-books and decisions as a proper word in this connection, and as the equivalent of 'would,' and we do not regard its use, under the circumstances here, as prejudicial.'
It has been determined by the court numerous times that the giving or refusing to give an instruction not mandatory in form is not prejudicial, where the given instructions as a whole state the law fairly and properly instructs the jury. Griffith, Ex'r, v. Thrall, Adm'r, 1941, 109 Ind.App. 141, 29 N.E.2d 345; Prudential Insurance Co. v. Martin, 1936, 101 Ind.App. 320, 196 N.E. 125; State v. Coridan, 1943, 221 Ind. 404, 407, 47 N.E.2d 978; Bain, Adm'x, v. Mattmiller, 1938, 213 Ind. 549, 554; 13 N.E.2d 712; Gatewood et al. v. Lynch, 1939, 107 Ind.App. 168, 23 N.E.2d 289; Carter v. AEtna Life Ins. Co., 1940, 217 Ind. 282, 288, 27 N.E.2d 75.
Instruction No. 11 left it for the jury to consider the conditions and circumstances disclosed by the evidence in determining what action would have been taken or avoided, what precaution should have been employed, and what course of conduct should have been pursued in order to measure up to the duty of due care. Union Traction Co. v. Berry, Admi'r, 1919, 188 Ind. 514, 121 N.E. 655, 124 N.E. 737, 32 A.L.R. 1171.
Instruction No. 9 given by the court of its own motion is as follows:
'This action is based on negligence and it is therefore necessary that the Court define negligence to you in these instructions.
(T. p. 72 Appellant's Brief p. 41.) Instruction No. 11, when considered together with Instruction No. 9 if inept in any particular was harmless to appellant.
While Instruction No. 11 is not phrased in the usual and orthodox language, considering said instruction in connection with the other instruction, we find no error therein.
We are called upon to say whether the evidence as disclosed by the record is sufficient to sustain the verdict of the jury and the ruling of the lower court on the motion for a new trial.
In that consideration, we are not concerned with the conflicting evidence or with the weight thereof, but only in determining whether there is an entire absence of proof of any of the facts necessary to be established.
The evidence disclosed that the appellant owned, installed, and had exclusive control of the high pressure gas main which carried a 200 pound pressure per square inch, together with the saddle and gasket where the leak occurred. The gas main was 14'8"' in front of appellee's house and about 2 1/2 feet under the surface. Two weeks prior to the explosion, an employee of appellant was looking for a leak in the gas main near where the leak was discovered. The leak in the gas main permitted the gas to permeate the entire area; that the type and nature of the soil was such as to permit the gas easy access under the house and to the basement; that the cement apron extended from the highway to the house and covered a portion of the high pressure main; that the surface of the front yard had been covered with clay from the hills; that a gas explosion creates a hot flash and ignitable substances are ignited; that this was a gas explosion caused from the leak in appellant's gas main.
There was a witness, one R. N. Harger, called as a witness on behalf of the appellees who qualified as an expert witness and the following questions were asked and answers given by said witness without any objections on the part of appellant.
'Q. If, on the evening of the explosion, the plaintiff herein went into the basement and on his way out turned and faced what we will then call the south, faced this direction; assume the stairway is in this portion here; turned off the electric light and at that moment the facts as you now know them and keeping in mind the inspection you made, the nature of the machinery you have inspected, do you have a notion as to the cause of that explosion. A. I do.
'Q. What was the cause of that explosion? A. In my opinion, based on an inspection of these premises day before yesterday and the circumstances and conditions of this house as related to me, it is my opinion that the explosion was from gas leaking from this main out in this highway.
The evidence clearly establishes, that the damage complained of was not caused by an explosion of fumes from gasoline or some other liquid inflammable substance as contended by appellant's counsel.
Counsel for the appellant very strongly urge that the crack in the gasket was itself caused by the explosion, but we cannot say the evidence leads inescapably to that conclusion.
The record is voluminous. The oral testimony covers over six hundred typewritten pages.
It will therefore be impossible to discuss in detail the testimony of each witness, although it has been carefully considered in connection with the able briefs and oral arguments of counsel representing the respective parties.
We are of the opinion that the record discloses sufficient evidence to sustain the verdict of the jury.
The negligence which was alleged to...
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