Pulaski Gas Light Co. v. McClintock

• Decision Date: 30 January 1911
• Citation: 134 S.W. 1189,97 Ark. 576
• Parties: PULASKI GAS LIGHT COMPANY v. MCCLINTOCK
• Court: Arkansas Supreme Court

134 S.W. 1189

97 Ark. 576

PULASKI GAS LIGHT COMPANY v. MCCLINTOCK

Supreme Court of Arkansas

January 30, 1911

Appeal from Pulaski Circnit Court; F. Guy Fulk, Judge; affirmed.

Judgment affirmed.

E. W Kimball, J. W. & M. House and J. W. House, Jr., for appellant.

1. McClintock's own act in disconnecting the riser made him responsible for the injury, and he was guilty of contributory negligence which was the proximate cause of the injury. When an independent act of a responsible person intervenes between defendant's negligence, if any, and the injury sustained such act breaks the causal connection between negligence and damages, and he who is guilty of the original negligence is not chargeable. 66 Ark. 68, 71-2; 49 Am. St. 199; 27 Id. 753; 23 Id. 220; 117 Mass, 533; 24 R I. 292; 96 Am. St. 713; 59 Miss. 430.

The law only imposed ordinary care on the gas company in the construction and repair of its pipes; and if the gas did not escape by any act of defendant, but through the independent act of another, it was not responsible. 49 Am. St. 199; 37 A. 263; 71 N.Y. 33; 90 Am. St. 773; 39 A. 296; 31 S.E. 914; 69 Am. Dec. 233; 20 L. R. A. 342; 70 S.W. 49; 62 Ark. 109.

2. The court erred in its instructions. A person who voluntarily and under no immediate necessity exposes himself to danger can not recover from another, even though the latter be guilty of negligence. 59 Ill.App. 459; 66 Id. 201; 76 Id. 672; 77 Id. 56; 75 Id. 198; 67 Id. 649; 83 Id. 600; 68 Id. 300; 85 N.Y.S. 728; 69 Am. Dec. 233; 19 Am. R. 421; 49 Id. 199; 66 Am. Dec. 406, note 409; 6 Allen, 105; 66 Am. Dec. 623, note 627.

3. No one can recover for wrong where he has consented or contributed to the act which occasioned the damage. 6 Allen 105; 104 Mass. 62; 69 Am. Dec. 236; 62 Ark. 109.

4. The remarks of counsel were highly prejudicial. 74 Ark. 298; 70 Id. 305; 75 Id. 577; 74 Id. 210; 74 Id. 258.

5. The verdict is excessive. 57 Ark. 377.

Mehaffy & Williams and Downie, Rouse & Streepey, for appellee.

1. Gas is a dangerous agency, and those engaged in handling it ought to use every precaution suggested by experience and the known danger of the subject. 62 Ark. 109; 57 Ga. 29; 18 L. R. A. 759.

2. The company's negligence was the proximate cause of the injury. 94 U.S. 476; 69 Ark. 402; 4 Am. & E. Ann. Cases, 150; 73 N.E. 1002. The principle laid down in 63 Ark. 81 is conclusive of this case. 61 Ark. 381.

3. No contributory negligence is shown. 35 N.Y. 28; 90 Am. Dec. 761; 22 N.Y. 215; 78 Am. Dec. 178; 108 Ill.App. 187; 82 Md. 118; 57 Ga. 29; 62 Ark. 109; 49 Am. St. 199; 37 A. 263; 71 N.Y. 33.

4. The instructions embody the law. 62 Ark. 109; 72 Ark. 579; Thompson on Negl. § 7630.

5. The argument of counsel was harmless. 74 Ark. 256.

6. The verdict clearly not excessive. 89 Ark. 333; 71 Id. 258; 60 Id. 550; 76 Id. 227.

KIRBY, J. MCCULLOCH, C. J., dissenting. Mr. Justice WOOD concurs.

OPINION

KIRBY, J.

This was an action by appellee for damages for the wrongful death of James McClintock, alleged to have been caused by the negligence of appellant. The complaint states "that plaintiff's intestate, James McClintock, for several years prior to and until the 17th day of March, 1909, resided in a house and lot on West Seventeenth Street, which had been his property and his residence continuously; that on the 17th day of March, 1909, plaintiff's intestate was engaged in some work on his premises under his residence, and was suffocated and died because of the escape of illuminating gas from the mains of the defendant, negligently permitted to escape, and plaintiff's intestate's death was due to such negligent act of the defendant: * * * that said plaintiff and her children are damaged by the negligent act of the defendant in the sum of fifteen thousand ($ 15,000) dollars; that plaintiff's intestate suffered great physical pain and mental anguish from his injuries until his death, and that his estate was damaged in the sum of five thousand (5,000) dollars."

To this complaint the appellant filed an answer, denying each and every allegation in the complaint, and afterward the appellee filed an amendment to her complaint, which is as follows:

"Comes the plaintiff by leave of the court and files this amendment to her original complaint herein, and states that the defendant negligently failed to install a stop box on a level with the sidewalk and just immediately next and inside the curb line when it laid its service pipes on plaintiff's premises, as it was required to do by ordinance No. 1020 of the city of Little Rock, Campbell & Stevenson's Digest of Ordinances of City of Little Rock, Ark., on account of which negligence in failing to install a stop box plaintiff's intestate was killed."

Appellant denied every material allegation of the complaint; that James McClintock's death was due to any negligent act on its part, and alleged "that, if he was suffocated by gas, it was because of his own carelessness and negligence in handling the pipes and fixtures of the defendant company, and such carelessness and negligence upon his part directly and proximately contributed to his death, and for which this defendant company is in no way responsible."

The testimony tended to show that James McClintock was asphyxiated and killed by gas escaping from the one-inch service pipe from appellant's mains which he disconnected under the front porch of his residence by unscrewing the "riser" on the morning of March 17, 1908, between 7 and 8 o'clock. He had been engaged in removing an old service gas pipe from his premises which was cut off at the curb line and left in the ground by the gas company when they lowered their mains upon the grade of the street being cut down in 1905, and when they put in a new service pipe from the main deeper in the ground than the old and at right angles to the main and within about a foot of and parallel to the old pipe and connected it with the same riser under the porch that had connected the old service pipe with the meter and the house. The end of this old pipe stuck out of the ground two or three inches over the curb line, and the sidewalk was being cut down to grade, and left it exposed across the sidewalk and an obstruction, and McClintock then unscrewed and broke and pulled up this old pipe, as the ground showed, to near the edge of the porch, under which the riser stood. The porch was about 20 inches high, and he digged a hole with a file about a foot in circumference around the riser, about eight inches deep, and to within about two inches of where it screwed into the elbow on the end of the service pipe. He took a pipe wrench and turned it, and it unscrewed at the elbow at the bottom of the hole, although there were three other places on it between the wrench and the elbow where it could have been unscrewed. He was found dead, under the porch about to his hips, lying on his belly stretched out with both hands in front of him in line, as if he tried to shove and couldn't, as a witness says, with his face pretty near right over the pipe from which the gas was spurting out. The pipe wrench was lying on his left and the disconnected riser or "goose-neck" as some witnesses call it, to his right, and the file was in the hole. The gas was first installed in the house in 1899, while deceased lived there with his sister. The one-inch service pipe was laid from the main in the street in front at right angles with it under the ground extending under the front porch about three feet where it connected with the riser or upright piece of pipe upon the top of which was a lead pipe goose-neck for connecting the meter and a meter cock to turn on and shut off the gas when the service was discontinued. The gas service in the house had long been discontinued, and the meter removed, but when or by whose direction the testimony does not show, and the gas was shut off by the meter cock on the riser near the top of it, leaving the gas in the main free access to the service pipe and the riser to where the meter cock stopped it. The premises were occupied by a tenant from 1903 to 1907 in the fall, when McClintock and his family moved in, and no gas had been used in the house since 1903. In 1905 the grade of the street was lowered and appellant's mains, and a new service pipe was put into the McClintock house without any request from or notice to him, and the old one disconnected and left in the ground as already stated. Deceased had been married about six years, and lived in Little Rock in 1905, went to Louisiana in 1906, and with his wife first moved into this house in the fall of 1907. There was no testimony tending to show that he had any knowledge of the fact that a new service pipe had been put in, or that the riser, which was the same size as the old pipe and smaller than the new, was connected with a live service pipe other than the riser itself as it stood there.

The ordinances of the city did not require the gas to be installed on the premises with a stop box and service cock at the curb to cut off the gas when the service was discontinued, and it was shown that the meter cock on the riser cut it off as effectively and safely, so far as the escape of gas was concerned, as the stop box would have done. No gas escaped nor could any have escaped but for the action of deceased in unscrewing the riser which he could not have done without the aid of a pipe wrench. There was conflicting testimony as to whether death could be produced by asphyxiation from gas escaping in the open air, some of the witnesses saying it was unheard-of and also as to whether death caused by asphyxiation by suddenly inhaling a large volume of illuminating gas would be so speedy as to be without pain and suffering. The court gave seven instructions as requested by appel...