Schneider v. Keokuk Gas Service Co., 49479

• Decision Date: 14 October 1958
• Docket Number: No. 49479,49479
• Citation: 250 Iowa 37,92 N.W.2d 439
• Parties: Linnie M. SCHNEIDER, Administratrix of the Estate of Stanley Hagmeier, Deceased, Plaintiff-Appellee, v. KEOKUK GAS SERVICE COMPANY, a Corporation, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 439

92 N.W.2d 439

250 Iowa 37

Linnie M. SCHNEIDER, Administratrix of the Estate of Stanley Hagmeier, Deceased, Plaintiff-Appellee, v. KEOKUK GAS SERVICE COMPANY, a Corporation, Defendant-Appellant.

No. 49479.

Supreme Court of Iowa.

Oct. 14, 1958.

McManus & McManus, Keokuk, for appellant.

Boyd, Walker, Huiskamp & Concannon, Keokuk, for appellee.

HAYS, Justice.

Damage action for death of plaintiff's decedent following an explosion. The petition, in separate Counts, alleges specific negligence and general negligence under the res ipsa loquitur rule. At the close of plaintiff's evidence the Court withdrew Count I from the jury. Count II, res ipsa loquitur, was submitted to the jury, which returned a verdict for the defendant. Plaintiff's motion for a new trial was sustained and defendant appeals.

Two errors are assigned. Error in overruling defendant's motion for a directed verdict, made at the close of plaintiff's evidence and again at the close of all of the evidence. Error, in that the granting of a new trial was an abuse of the trial Court's discretion.

I. Appellant asserts it was, under the record, entitled to a directed verdict and hence the granting of a new trial and setting aside a verdict in its favor was error. We have held that where a verdict should have been directed, and a jury renders such a verdict, the error is cured and the verdict should be permitted to stand. Bennett v. Ryan, 206 Iowa 1263, 1270, 222 N.W. 16; Jordan v. Schantz, 220 Iowa 1251, 264 N.W. 259; Greiner v. Hicks, 231 Iowa 141, 300 N.W. 727. Thus an examination of the record is essential.

II. Decedent was an employee of the Copeland Baking Company, as a delivery truck driver. The bakery was located at Tenth and Main Streets in Keokuk, Iowa. It had a truck garage catercorner through the block on Eleventh and Johnson Streets. This garage was a brick construction with stone foundation and a crushed rock floor There was an overhead door on Eleventh Street and another on the alley side; also some windows and a walk-in door. Within this building was a sewer pipe connected to the main city sewer on Johnson Street. Its intake was capped about two feet below the floor level. At the time in question ten gasoline-propelled trucks and two automobiles were parked in this garage, each of which contained in undetermined amount of gasoline in its tank.

Appellant owned and operated the gas system which furnished natural gas to the inhabitants of the City of Keokuk. One of its gas mains was on Eleventh Street and located four feet from the outside wall of the garage. This main, constructed in 1950 of new cast iron pipe, was buried to a depth of 30 inches and covered with some macadam and a six inch concrete cap. It carried gas at 40 pound pressure. At the time in question, in accord with appellant's custom, an additional amount of 'odor' was added to the gas as an aid in detecting leaks throughout its system. No complaints as to a leak in this location had been received by the Company.

On the morning of November 1, 1953, decedent went to the garage for a truck to make local deliveries. He got into a truck, backed it out into the aisle and drove forward to the door, which was closed. As he was getting out of the truck an explosion occurred from which he sustained burns and died the next day.

Shortly after the explosion, tests were made inside the building by appellant's employees and no gas was detected. Two test were made outside and no gas detected. The next morning, Monday, November 2, 1953, employees made outside tests the full length of the building on Eleventh Street and traces of gas were detected. The main was then uncovered for the entire distance along the building and at least one leak was found which, when lighted, flamed up some three feet and then settled back to a steady flame ten to twelve inches high. Dr. Lionel K. Arnold, a professor of Chemical Engineering at Iowa State College, testified as an expert on explosions, as a witness for the plaintiff. There is considerable testimony by him as to the explosive qualities of natural gas and of sewer gas and in what respect and under what conditions there is a similarity between the two gases. In answer to a hypothetical question, he stated, 'It is my opinion that gas leaked from the natural gas main and passed in through the foundation wall under the floor of the garage and leaked up into the garage proper until it was present there in concentration sufficient that an explosion occurred when it became ignited. The ignition may have resulted from the truck backfiring or from the leak--some sparking in the electrical system of the truck.' He also gave as his opinion that the probable cause of the explosion as he stated (natural gas) was more probable than any other cause or probable cause of the explosion. Upon behalf of the defendant testimony was offered as to the type and condition of the sewer, complaints as to sewer gas, of a faulty cap upon the sewer connection buried in the garage, the care used by it in policing its mains for possible leaks and the presence of gasoline in the garage.

Three propositions are advanced by appellant in support of its claimed right to a directed verdict. (1) Res ipsa loquitur does not apply; (2) If so, defendant has rebutted the inference as a matter of law; (3) No showing of freedom from contributory negligence.

III. As we have stated innumerable times, the res ipsa loquitur doctrine is a rule of evidence that under certain circumstances permits, but does not require, a finding of negligence. Those circumstances are two fold. (1) The instrumentality causing the injury is under the exclusive control of the defendant, and (2) the occurrence is such that in the ordinary course of things, based upon common experience, it would not happen if reasonable care were used. Young v. Marlas, 243 Iowa 367, 51 N.W.2d 443, and authorities therein cited. It is conceded by defendant that the gas main located near the garage was under the exclusive control of the defendant. There is evidence from which the jury might find the explosion was caused by escaping natural gas. While it is conceded that natural gas is a highly dangerous commodity, common experience tells us that ordinarily an explosion will not happen if due care has been exercised in the control thereof. This was ...