Sharkey v. Portland Gas & Coke Co.

• Decision Date: 22 December 1914
• Parties: SHARKEY ET AL. v. PORTLAND GAS & COKE CO.
• Court: Oregon Supreme Court

144 P. 1152

74 Or. 327

SHARKEY ET AL. v. PORTLAND GAS & COKE CO.

Supreme Court of Oregon

December 22, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Action by Edward J. Sharkey and another against the Portland Gas &amp Coke Company. From a judgment of nonsuit, plaintiffs appeal. Reversed, and remanded for further proceedings.

The plaintiffs are the owners of real property in Portland fronting on Eighth street between Holladay and Pacific streets. The defendant is a corporation engaged in the distribution and sale of illuminating gas. After stating that the plaintiffs have three trees in front of their premises and that adjacent to them the defendant has a gas main running north and south along Eighth street, the plaintiffs allege:

"That said defendant did not properly maintain, conduct, or keep in repair said gas main; that said defendant allowed said gas main to get in such a condition that it leaked; that the leakage in said gas main continued for a long while that said gas main was not properly and frequently inspected by the gas company; that the gas leakage from said main within the last year has killed the three trees heretofore mentioned; that by reason of the facts hereinbefore alleged the plaintiffs are damaged in the sum of $500."

This quotation from the complaint is traversed by the answer. The substance of the new matter in the answer is to the effect that the plaintiffs knew of the leakage of gas, if any existed, for a long time, but neglected to notify the defendant; that as soon as it became aware that the gas was leaking from its main it immediately repaired it; and further that the negligence of the plaintiffs in failing to notify the defendant of the leakage, contributed to the death of the trees. The new matter of the answer is denied in the reply.

During the trial the plaintiffs asked leave to amend their complaint to the effect that the matters set forth in the quoted portion of the complaint were due to the carelessness and negligence of the defendant. This motion was denied by the court. At the close of the testimony on behalf of the plaintiffs the court, on motion of the defendant, entered a judgment of nonsuit, and the plaintiffs appeal.

A. King Wilson, of Portland (Wilson, Neal & Rossman and Geo. P Hopkins, Jr., all of Portland, on the brief), for appellants. H. W. Strong, of Portland (John A. Laing, of Portland, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

It is within the discretion of the court to allow a pleading to be amended during the trial. L. O. L. § 102. We cannot say that the court abused its discretion in refusing the change desired, and hence the plaintiffs can take nothing here by virtue of that assignment of error.

The testimony on behalf of the plaintiffs56 strongly tended to show that the trees in question began to show signs of dying early in the month of July, when the leaves began to turn yellow and two of the trees actually died soon afterwards. About this time, the plaintiffs, being apprehensive that the sickly appearance of the trees was caused by gas, dug down into the parking near them and became convinced that gas was escaping. They notified the company to that effect. The defendant then sent men, who drilled holes in the pavement from which gas escaped in sufficient quantity to be lighted by boys playing with matches. The company then excavated over the main and found that it had been broken, making a vent for the gas. Some of the testimony tends to attribute the break to the fact that a water main had been laid across the gas main by the city authorities, and that the refilling of the excavation caused a pressure against the gas main, which it could not withstand, resulting in the breach from which the gas escaped.

Illuminating gas is a dangerous thing when it eludes control, and it is incumbent...