Sipple v. Laclede Gaslight Co.

• Decision Date: 14 May 1907
• Parties: SIPPLE v. LACLEDE GASLIGHT CO.
• Court: Missouri Court of Appeals

102 S.W. 608

125 Mo. A. 81

SIPPLE v. LACLEDE GASLIGHT CO.

St. Louis Court of Appeals. Missouri.

May 14, 1907.

1. GAS — DEATH — INJURIES FROM ESCAPING GAS—NEGLIGENCE—EVIDENCE.

In an action against a gas company for causing the death of one by asphyxiation through negligently permitting its mains to be-become defective and leaky, whereby gas escaped into the room wherein deceased was sleeping, evidence held to warrant a finding that deceased exercised due care.

2. SAME — OPERATION OF WORKS — CARE OF MAINS—DUTY OF PRODUCER.

It is the duty of a producer or transmitter of illuminating gas to conduct his operations with a very high degree of care and skill.

3. SAME—EVIDENCE—PRIMA FACIE PROOF.

In an action against a gas company for injuries occasioned by escaping gas, prima facie proof of negligence is made by showing the break or leak in the main and the consequent escape of gas operating proximately to cause the loss.

4. SAME—SUBMISSION TO JURY.

In an action against a gas company for causing the death of one by asphyxiation, resulting from gas escaping from a main, evidence held to warrant the submission of the issue of defendant's negligence to the jury.

5. SAME — PLEADING AND PROOF — INSTRUCTIONS.

Where, in an action against a gas company for causing the death of one by asphyxiation, resulting from gas escaping from a street main, the petition charged defendant with negligently permitting its main to become defective, and also alleged that defendant knew, or by ordinary care might have known, of the defective condition of the main, and the proof showed that defendant did have knowledge of such defective condition, an instruction permitting a recovery for defendant's negligent omission to prevent the escape of gas, after knowing of the leak, was properly predicated on both the petition and proof.

6. DIVORCE—RIGHTS OF CHILD.

An infant is not devested by a judgment to which he was not a party, divorcing his

parents and giving the custody of the infant to the mother, of his right to the care and support of his father.

7. DEATH—DAMAGES—INSTRUCTIONS.

Under Rev. St. 1899, § 2866 [Ann. St. 1906, p. 1646], providing that, in an action for wrongful death, the jury may give such damages, not exceeding $5,000, as they may deem fair and just, with reference to the necessary injury resulting from such death, etc., an instruction confining recovery to an amount that is fair and just, the jury having reference to the necessary injury resulting therefrom, is proper, in the absence of a request by defendant for more specific directions on the subject.

8. TRIAL—INSTRUCTIONS—CURE OF ERROR.

In an action for wrongful death, any error in an instruction failing to direct attention to the proper elements of damage was cured, where, in separate instructions on the measure of recovery, correct rules were set forth.

9. SAME—NOMINAL DAMAGES—EVIDENCE.

In an action for wrongful death, the court properly refused to confine a recovery to mere nominal damages, even though the evidence failed to show the amount deceased was earning at the time of his death.

10. SAME—EXCESSIVE DAMAGES.

In an action for wrongful death of deceased, a strong vigorous man about 35 years of age, earning, when employed, from $10 to $15 a week, a verdict for $2,000 was not excessive.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by George Sipple, by next friend, against the Laclede Gaslight Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff, an infant boy, sues by next friend, his mother, for the wrongful death of George Sipple, his father. It is, in substance, alleged that defendant gas company negligently permitted one of its mains to become defective and leak, whereby illuminating gas escaped into the room in which plaintiff's father was sleeping, causing his death by asphyxiation, and that defendant knew, or by the exercise of ordinary care might have known, of the defective condition and averted the consequent death. In order to bring the case within the provisions of the wrongful death statutes (sections 2865-2866, Rev. St. 1899 [Ann. St. 1906, pp. 1644, 1646]), plaintiff introduced formal proof to the effect that the deceased left no wife surviving him, the plaintiff's mother having been recently divorced from his father; that plaintiff is his only child, a minor about five years of age; that no prior suit had been instituted on account of his death, and more than six months had elapsed since the death occurred. And, further, the evidence on the part of the plaintiff tended to prove his deceased father was a strong and vigorous man of about 35 years of age, enjoying good health at the time of his death. He earned, when employed, from $10 to $15 per week. For three or four years prior to his death, except six months immediately previous, he had been addicted to excessive drinking of intoxicants, and it appeared in the cross-examination that, because of this, he had become indolent, did not attend regularly to his labors during that time, had, in some respects, been unkind to his wife when drinking, and provided only scantily for his family. All of the evidence tends to show, however, that he was deeply attached to, and manifested great kindness toward, his little son. His wife had recently been divorced on allegations of indignities offered to her, and by the decree of divorce the care and custody of the infant plaintiff was awarded to the mother. There is substantial proof tending to show that for six months next prior to his death the father had reformed and conducted himself with a becoming degree of sobriety, and had frequently called upon his divorced wife in an effort to induce her to reconsider her action and remarry with him, on which occasions he gave no evidence of drinking and gave numerous promises of reform. At the time of his death, the deceased lived with his brother at No. 2704 Chippewa street, in the city of St. Louis, and occupied the front room on the first floor at that number as his bedchamber. As to his death and the alleged negligence of the defendant which caused it, the evidence tended to prove that about noon, January 14, 1905, a young lady passing in front of the adjacent dwelling No. 2706 Chippewa street, being attracted by the odor of escaping gas, telephoned the main office of the company to the effect that there was a leak at that number. About 3 o'clock in the afternoon, the gas company notified one of its inspectors having charge of the district of this and other reported leaks. The inspector proceeded to look after the several complaints, and reached No. 2706 Chippewa street about 7 o'clock that evening. Finding the meter and main thereat secure, he examined around the walls of the basement and discovered gas exuding therefrom, which indicated the location of the defect in the mains to be at a point in the street which could not be remedied by him alone. He thereupon reported the matter, and the proper officer of defendant dispatched thereto what was known as the "trouble wagon," in charge of a foreman and a number of men. These men reached the scene and began sinking holes in the street, in an endeavor to locate the exact point of leakage and repair it, at about 10 o'clock that night. They continued their labors until about 2 o'clock in the morning, at which time, not having discovered the break in the main, it is said they "vented it" so as to prevent a further escape of gas into the basement of 2706, quit the task, and went away until 7 o'clock Sunday morning, at which time the foreman, with three men returned and labored until about 2 or 3 o'clock Sunday afternoon, when the leak was discovered to be a recent break in the four-inch main beneath the surface of the street near the room occupied by plaintiff's father. The crack in the main is said to have appeared to be of a few days' standing. It was shown there was no gas consumed in the residence wherein the plaintiff's father resided, nor was the gas connected with that dwelling, except to a range in the kitchen. There was no odor of escaping gas in this dwelling during the afternoon and evening of January 14th. About 10 o'clock that night, the gas men inquired of the family with respect to this matter, and plaintiff's father answered that there was no gas odor there, and, if it was escaping, it must be in the next house, and immediately thereafter, healthy, strong, and in good spirits, he retired, about 10 o'clock, in the front room on the first floor. This room was near the point where the gas leak was subsequently located, and the bed occupied by him about 25 feet therefrom. The deceased's brother went into the room about 15 minutes after plaintiff's father had retired, for the purpose of locking the front door, and no odor or indication of gas was noticed by him. There was a door and window which opened onto the street toward the gas leak. Deceased's brother and wife occupied the second room from the front, with the doors closed between, and upon arising Sunday morning, deceased's brother felt some dizziness, and his wife noticed some headache, and others thereabout noticed a slight sickness of the stomach. No one noticed a gas odor, however. About 10:30 on the same morning, the room in which plaintiff's father had retired was opened and found to contain a great quantity of gas, said to be "enough to kill a dozen men," which gas, the evidence tends to show, was driven into the room by the wind from the street through the crevices around the door and window. The deputy coroner, a physician who conducted an autopsy over the remains, recited his observations, indicating death from illuminating gas poisoning, and gave an opinion that the deceased came to his death by asphyxiation, by inhaling the gas, etc. There was other substantial evidence to the same effect.

Defendant introduced evidence tending to prove that the deceased had been an inebriate for three or four years prior to his death;...