Southern Indiana Gas Company v. Tyner
| Decision Date | 21 February 1912 |
| Docket Number | 7,442 |
| Citation | 97 N.E. 580,49 Ind.App. 475 |
| Parties | SOUTHERN INDIANA GAS COMPANY v. TYNER |
| Court | Indiana Appellate Court |
From Rush Circuit Court; Will M. Sparks, Judge.
Action by Irving E. Tyner against the Southern Indiana Gas Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
J. E Bell and Ball & Needham, for appellant.
J. E McCullough and William C. Welborn, for appellee.
OPINION
Appellee brought this suit against appellant gas company and others for damages for personal injuries caused by a gas explosion in a moving-picture theatre.
The complaint was in two paragraphs, to each of which a separate demurrer was overruled and exceptions saved.
The cause was then put at issue by a general denial. There was a trial by jury, and a general verdict for appellee in the sum of $ 4,200, with answers to interrogatories.
A motion by the gas company for judgment on the answers to interrogatories, and the separate motion of each appellant for a new trial was overruled, and proper exceptions saved by each, after which the court rendered judgment on the verdict, and this appeal was prayed and perfected by the gas company.
The errors on which appellant gas company relies for a reversal of the judgment below present for the consideration of this court the rulings of the court below on the demurrer to each paragraph of the complaint, the ruling on the motion for judgment for such company on the answers of the jury to the interrogatories, and the ruling on said company's motion for a new trial.
These errors, so far as we deem it necessary to discuss them, will be considered in the order just given. The only objection urged to the sufficiency of the first paragraph of the complaint is that its allegations on the subject of appellant's negligence are conclusions of law drawn by the pleader, and that facts showing negligence are not pleaded; also that there is no allegation that appellant gas company had notice of the "defective conditions" of the pipe in question. This paragraph is lengthy, and we shall set out only that part of it which presents the objections urged. It alleges that appellant was a corporation engaged in the business of furnishing, to the citizens of Greenfield, gas for lighting and heating purposes, giving the location of its gasmains in the streets of said city, their location with reference to the building where the explosion is alleged to have occurred, the rental of said building, the names of its owner and occupants, who were also defendants to the suit, the manner in which appellant's supply pipe was connected with its main and with the supply pipe of said building, and the means of controlling and furnishing said supply; that said ground floor of said building was by its occupants being then used for the purpose of picture-show exhibitions, that appellant company had turned its supply of gas from its said main and plant through its said service pipe into the supply pipe of said building, and had attached the meter through which to furnish the gas to the occupants of said building; that a few days after said gas was so turned on, defendants, other than defendant gas company and the owner, namely the defendants in possession of said room, detected the odor of escaping gas in said room and notified defendant gas company; that said defendant reattached said meter so attached by it and again turned on the gas; that those in possession of said premises again detected the odor of escaping gas in said room, and repeatedly notified defendant gas company of the existence of said menace to the safety of its patrons; that the connection of the meter was defectively made by said defendant with a supply pipe that was in a defective condition and unfit for use, and on this account the gas so turned on by said defendant from its said main was permitted to escape, "through the negligence" of said defendant, "and was thus imprisoned immediately beneath the floor thereof by reason of the negligence of said defendant," and that defendant so repeatedly notified of said condition, made no "attempt to remedy the same or any effort to discover the origin thereof, and to prevent the same," but "being fully apprised of the existence of said danger, permitted said condition to grow more aggravated until the evening of March 25, 1907; that during all the time the picture shows were being given, gas was by defendant gas company and the other defendants negligently permitted to escape and to accumulate under said room; that on the evening of March 25, 1907, said gas, so negligently permitted to escape and accumulate by said defendants, was ignited by reason of a boy's accidentally dropping a lighted match through the grate, thereby causing said gas to explode."
While some of the averments given may be in the nature of conclusions, the facts alleged are sufficient to show notice to appellant gas company of the escaping gas, and, independent of the allegations averring in effect that appellant had been notified, the paragraph contains the further averments that the connection of the meter was by appellant gas company "defectively made" with a "supply pipe that was in a defective condition and unfit for use;" that after being fully apprised of the existence of said danger, said appellant permitted such condition to continue, and on account thereof the gas so turned on by said company was negligently permitted to escape and accumulate beneath the floor of said room. These averments are sufficient to make the complaint good on demurrer as against the objections urged.
The second error on which appellant relies calls in question the second paragraph of the complaint, but is not argued, and is therefore waived.
The third alleged error calls in question the ruling of the court on the motion for judgment on the answers to interrogatories. The interrogatories and answers thereto, on which appellant bases its argument that the overruling of said motion was error, are as follows:
(11)
In this connection it is important to consider the averments of the second paragraph of the complaint. This paragraph, in addition to the averments common to both paragraphs, proceeds, in substance, as follows: The said Southern Indiana Gas Company, had full notice and knowledge that said shows and entertainments were being so given daily and nightly in said building, and that large numbers of people were invited and induced to be present in said building at each and every one of said shows; that at the time of said renting, said pipes beneath said floor of said building were old, having been placed there more than twenty years previous; that immediately prior to the time the Southern Indiana Gas Company placed a gas-meter in said building, as hereinafter averred, natural gas had been continuously escaping from said defendant's pipes in said street into the space beneath the floor of said building, and remaining in large quantities under said floor, and rising through the floor, and permeating the air in and about said building, of which facts all of the defendants herein had full knowledge and notice at the time said meter was so placed; that among other holes in said gas-pipe under said floor in said building was one where a riser had been taken out, and no cap placed thereon or therein, and no other means adopted to prevent gas from escaping from said pipes through said hole; that through the holes and leaks in said pipes the natural gas escaped under the floor of said building, permeated the atmosphere in and about said building, and exploded; that said explosion caused the injury to said plaintiff, hereinafter averred; that the Southern Indiana Gas Company could by exercising reasonable diligence, and by inspection have known, at the time it attached said meter to said pipes, of the holes in said pipes under said floor, and of the unfitness of said pipes to contain natural gas; that it negligently failed and refused to make such inspection; that, in point of fact, it did know at that time that gas was and had been escaping from its pipes in the street through said cut-off into the pipes under said building, notwithstanding said defendant so negligently attached said meter that gas escaped from the joints of said pipes; that said defendant wrongfully and negligently opened said cut-off and permitted said gas from its pipes to pass into said pipes under said building, knowing at that time and frequently being notified thereafter, previous to plaintiff's injury, that said pipes were full of holes, and unfit for use, and well knowing that the gas was continually escaping from said pipes.
When this second paragraph of complaint is considered, there is little, if any, conflict between the general verdict, which is a finding that such averments were proved, and the answers to the interrogatories when considered as a whole, and any apparent conflict between such verdict and the answers is, in a large measure, cleared up by the answers to interrogatories eight and ten, which are as follows: ...
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