Slater v. United Fuel Gas Co.
| Decision Date | 19 October 1943 |
| Docket Number | (No. 9467) |
| Citation | 126 W.Va. 127 |
| Court | West Virginia Supreme Court |
| Parties | Everett Slater, An Infant, etc. v. United Fuel GasCompany. |
1. Appeal and Error
It is error to refuse an instruction which correctly sets forth a litigant's theory of the case, not presented by other instructions and which is inconsistent with that of the opposing party, where there is substantial evidence tending to support such theory.
2. Trial
Admission of illegal evidence over objection is presumptively prejudicial and where it does not clearly appear that a verdict against the party objecting was unaffected thereby, a judgment rendered thereon should be reversed and the verdict set aside.
Error to Circuit Court, Kanawha County.
Action of trespass on the case by Everett Slater, an infant, etc., against the United Fuel Gas Company to recover damages for personal injuries. A verdict was returned in favor of plaintiff, and judgment entered thereon after overruling motion to set aside the verdict and grant a new trial, and defendant brings error.
Judgment reversed; verdict set aside; new trial awarded.
Harold A. Ritz, R. K. Talbott and B. J. Pettigrew, for plaintiff in error.
Lillian S. Robertson, J. Blackburn Watts and L. F. Poffenbarger, for defendant in error.
This case comes here on a writ of error and supersedeas to a judgment of the Circuit Court of Kanawha County rendered in an action of trespass on the case to recover damages for personal injuries wherein Everett Slater is plaintiff and United Fuel Gas Company is defendant. A jury returned a verdict in favor of the plaintiff for two thousand five hundred dollars and the court, after overruling a motion to set aside the verdict and grant defendant a new trial, entered judgment for the amount of the verdict.
Plaintiff, a boy fourteen years of age, suffered severe burns on June 11, 1942, while in or near the waters of the left fork of Tuppers Creek, approximately three hundred forty-five feet downstream from a point at which defendant's ten-inch high pressure gas pipe line crosses the stream. Plaintiff's injuries were occasioned by a sudden conflagration which apparently commenced at or near where plaintiff was injured, and extended downstream therefrom about seventeen hundred feet, and upstream (about three hundred forty-five feet) to defendant's pipe line, it being estimated that the flames thereof were from forty to seventy-five feet high. The creek is a small shallow stream, bordered with overhanging trees and brush, and flows in a westerly direction in close proximity to a public road. The stream consisted of small connected pools, plaintiff being in or near a pool when the fire occurred. Children in the vicinity of the pipe line were wont to play in the stream and along its banks, although defendant denies knowledge of that fact.
Defendant maintained at intervals along its pipe line devices known as "drips" and "siphons" for the elimination of moisture in the line. A "drip" is a mechanism which hastens the condensation of moisture and collects the liquid in a reservoir from which it is drained into a storage tank. One such storage tank, with a capacity of one hundred barrels (3600 gallons), is situate on the slope of the hill about two hundred feet north of the point where defendants pipe line crosses the creek. A siphon is a manually operated valve opening at low points in a pipe line where liquids not condensed by drips accumulate, one being located in defendant's pipe line about four feet from the waters of the stream, which was opened daily by defendant's employee, and usually kept open about twenty minutes. At the time of the fire the siphon so located had been open about ten minutes, and it was estimated that approximately twenty gallons of liquid had been released therefrom, said liquid being nearly equal quantities of gasoline and water.
Defendant's evidence tends to show that the liquid released from this siphon was blown on and against the bank of the stream, but plaintiff's evidence tends to show that it was released directly into the water, plaintiff's contention being that the gasoline which caught fire was the gasoline discharged from the siphon and into the water. Defendant maintains that the gasoline which caused the fire came from defendant's storage tank near the drip, the gasoline having been released therefrom by people in the neighborhood, including plaintiff and members of his family, engaged in purloining gasoline. Defendant shows that it had caused some sixteen expensive locks to be placed on the release valve of its storage tank, and that these locks had been broken by persons unknown to defendant, and gasoline allowed to drain from its storage tank. Gasoline so released from the tank would flow one hundred sixty-two feet downhill to a ditch along the north side of the road, thence westerly one hundred fiftyeight feet to a culvert under the road, and thence into the creek at a point two hundred ten feet upstream from where plaintiff was injured. 'It appears that in the two days immediately preceding the fire between forty and fifty barrels of gasoline had escaped from the tank, but there is no evidence as to how much, if any, thereof flowed into the stream, or remained along the drainage lines from the storage tank to the outfall from the culvert into the brook.
All of the errors assigned do not merit or require consideration. We consider only the assignments of error relied on and discussed in the briefs of the litigants, which may be summarized as follows: (a) that plaintiff did not prove his case by a preponderance of the evidence; (b) that the trial court erred in giving instruction No. 1, requested by plaintiff, and in refusing instruction No. 16 offered by defendant; (c) that it was error to admit, over objection of defendant, allegedly illegal and prejudicial testimony; and (d) that the motion to set aside the verdict and grant the defendant a new trial should have been sustained.
Defendant argues that all of plaintiff's testimony should have been excluded from the jury, or that peremptory instruction No. 1, requested by defendant, should have been given. The position assumed by the defendant that the extent and magnitude of the fire militated against plaintiff's theory that it was caused by gasoline discharged from the siphon, and that it is more probable that the fire was caused by gasoline drained from the storage tank of defendant which entered the stream through the culvert and was released from the tank by persons without the knowledge or consent of defendant. It may be doubted that a fire of the magnitude and extent indicated by the testimony could have been caused by the fluid discharged from the siphon, in view of the fact that only twenty gallons of fluid were discharged therefrom. It is observed that the record shows that the fire was confined entirely to the stream and did not go through the culvert, along the drainage lines to the storage tank, and, further, that the siphon was opened daily. As to daily opening of the siphon, it is shown that no gasoline was discharged from it prior to the day of the fire. The absence of gasoline on such prior occasions is not accounted for nor explained. We cannot say that the plaintiff's theory as to the origin of the fire is incredible or improbable. The evidence showing that the fire extended to the point where the gasoline was being discharged from the siphon and that it did not burn in the culvert and along the drainage lines was for consideration and evaluation by the jury. The rate of flow of the stream, which would carry the gasoline in liquid form, and the direction of the air currents, which would carry it if vaporized, are not shown.
The rule relating to balance of probabilities is but another way of stating that where plaintiff does not prove his case by a preponderance of the evidence, he fails. C. & O. Ry. Co. v. Whitlow, 104 Va. 90, 51 S. E. 182. The proof appearing in this record is such that there may be honest, reasonable, and different conclusions as to the source of the inflammable matter which caused the fire. The extent of the fire and the height of the flames was estimated and for that and other reasons hereinabove stated we do not think such facts are controlling. In our opinion the court did not err in...
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...party objecting was unaffected thereby, a judgment rendered thereon should be reversed and the verdict set aside.' Slater v. United Fuel Gas Co., 126 W.Va. 127, 27 S.E.2d 436; Mitchell v. Metropolitan Life Insurance Co., 124 W.Va. 20, 30, 18 S.E.2d 803. See Alford v. Kanawha & W. V. Railroa......
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...and is cause for reversal unless it appears that the verdict of the jury could not have been influenced by it. Slater v. United Fuel Gas Co., 126 W.Va. 127, 27 S.E.2d 436; Mitchell v. Metropolitan Life Insurance Co., 124 W.Va. 20, 18 S.E.2d 803; State v. Stone, 100 W.Va. 150, 130 S.E. 124; ......
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...appears, and it does not appear, that the verdict of the jury could not have been influenced by such evidence. Slater v. United Fuel Gas Company, 126 W.Va. 127, 27 S.E.2d 436; Mitchell v. Metropolitan Life Insurance Company, 124 W.Va. 20, 18 S.E.2d 803; State v. Stone, 100 W.Va. 150, 130 S.......
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