Splinter v. City of Nampa

• Decision Date: 01 April 1953
• Docket Number: No. 7828,7828
• Parties: SPLINTER v. CITY OF NAMPA et al.
• Court: Idaho Supreme Court

Page 215

256 P.2d 215

74 Idaho 1

SPLINTER v. CITY OF NAMPA et al.

No. 7828.

Supreme Court of Idaho.

April 1, 1953.

Rehearing Denied April 28, 1953.

Garrity & Garrity, Nampa, and Elam & Burke, Boise, for appellant.

Frank F. Kibler, Nampa, J. F. Martin, Boise, George Donart, Weiser and Van de Steeg & Schiller, Nampa, for respondent.

TAYLOR, Justice.

Subsequent to the prior appeal herein, Splinter v. City of Nampa, 70 Idaho 287, 215 P.2d 999, 17 A.L.R.2d 665, and after defendants had answered, the cause was tried to a jury and judgment was entered on the verdict in favor of the plaintiff, Splinter, and against both defendants. Thereafter, the defendant, City of Nampa, filed its motion for judgment notwithstanding the verdict, based on the grounds (1) that the evidence is insufficient to support the verdict, and (2) evidence affirmatively shows that the plaintiff was guilty of contributory negligence. This motion was granted and plaintiff Splinter brings this appeal from the judgment entered thereon.

The appellant Splinter was the owner of a business building, in the city of Nampa, with a frontage on 1st Street South of 40 feet and extending northeasterly to an alley a depth of approximately 90 feet. The front part of the building, to a depth of possibly 34 feet, was two stories high, and the rest of the building one story. The building, as originally constructed, extended back from the street a depth of 60 feet with a basement under the rear 26 feet. The walls of this original structure were 12-inch brick, the rear wall being set upon a basement foundation wall of lava rock. Subsequently the building was extended 30 feet to the alley with 8-inch brick walls, and this part was also excavated and the basement extended to the alley. The original rear wall was left in place, so that both the basement and the ground floor were divided by that wall, except for access doors. The entire building was divided into equal parts by a longitudinal division wall. Facing the building from the street, the left-hand side was occupied by the 'Alibi Inn', and the right-hand side by the 'Forbidden Palace', a restaurant operated by Chinese tenants of appellant Splinter. The kitchen of this restaurant occupied the rear portion of the cafe side, extending from the original rear wall to the alley. The front 60 feet of the ground floor was occupied by the dining area. The original basement, being under the rear 26 feet of this dining area, was occupied by a coal furnace with a floor type register for the heating of the dining room. The basement under the extended part of the building, under the kitchen, was used for storage of coal and other supplies. The stairway leading to the basement was located toward the rear of the kitchen next to the partition wall. There was a rear door from the kitchen opening onto the alley at the rear of the building. This alley is 10 feet wide with a paved surface. In the rear wall in the alley, there was a coal chute opening into the basement, which was surrounded by a concrete box or pit, 16 inches wide and 33 inches in length and about 30 inches deep.

The tenants operating the cafe, desiring to have facilities installed for the use of gas in cooking, applied to the defendant, American Butane Company, for such installation. The local manager of the butane company, K. C. Baird, testified that he, in company with the manager of the cafe, one Kim Fong (later killed in the explosion), went to, and obtained the permission of the plaintiff to install the necessary equipment, and to use gas in the building. The plaintiff testified that he did not remember that conversation, although he wouldn't say that they did not discuss the matter with him, and that the first he knew of the use of butane fuel was in the early summer of 1946 or 1947, when Kim Fong took him into the kitchen and showed him the new range. Later in the trial, while on the stand as a witness for the butane company, Baird testified that at the time he and Kim Fong sought permission to install gas facilities, the plaintiff had his office on the second floor of the building involved, and that when they first went up to see him he advised them he would investigate to learn whether the use of gas in the building would affect his insurance, and that they went back to his office the next day and on this second visit the plaintiff consented to the installation and use of gas in the building. Although called to the stand as a rebuttal witness, the plaintiff did not deny these additional facts relative to his knowledge of, and consent to, the use of gas in his building. Thereafter, Baird, for the butane company, made application to the City of Nampa for permission to install a butane tank on city property at the rear of the cafe. This permission was granted by the city council at its regular meeting December 3, 1945, as follows.

'The American Butane Company requested permission to install a butane tank in the alley near the rear of the Forbidden Palace Cafe.

'Moved by Robinson and Seconded by Kinney that the aforesaid request be granted, provided the tank be buried under the direction of the City Engineer. Motion Carried.'

The city engineer, John Griffith, was not a witness, having died prior to the trial. Accepting Baird's testimony as to the facts, he and the city engineer met in the alley early in December, 1945, on the day the tank was installed, and Griffith showed him where to put the tank; that is, to bury it next to the rear wall of the cafe. Baird expressed a desire to put the tank above ground at the rear of another building across the alley and run the service pipe under the alley; his reason for preferring such location was that he considered it more safe and more accessible for filling and servicing by his tank driver; that Griffith objected to that location because of the necessity of digging a trench across the alley; and that the tank was installed at the place indicated by the engineer. The tank was so located that the end containing the valves and service connections protruded into, and were accessible through, the pit surrounding the coal chute opening. Whether this precise spot along the wall where the tank was placed was also selected by the engineer, or whether it was dictated by convenience in installing and servicing of the tank, the witness did not say.

The tank remained in this position from the time it was installed early in December, 1945, until after the explosion, which occurred on the evening of November 15, 1947. During this time it was filled or the supply of gas replenished an average of once each week.

During the evening of November 15, 1947, one of the Chinese 'phoned to the butane company for a delivery of gas and, a little later, again called, reminding the person who answered that he had earlier requested a delivery and that it had not arrived. Whether the urgency was due to a leak in the line which caused the Chinese to think his supply was low, or, it being Saturday night, he wanted to be sure he would have enough for his needs until Monday, is left to surmise. The delivery truck driven by one Kellum, who testified he was employed as an installation and service man and that he delivered gas only on emergency occasions, arrived shortly before eight o'clock. Kellum testified that upon his arrival the tank was a little less than twenty per cent full; that he did not detect an odor of gas when he inquired at the kitchen door whether they wanted fuel; that he put in 50 gallons; that he made a good connection and there was no leakage; that he did not smell or hear escaping gas during the transfer of the fifty gallons; that if it had been escaping he could have heard it; that after the fifty gallons was transferred he shut off the motor, closed the valves on the 'liquid line', then disconnected the 'vapor line', rolled it up and put it on his truck. In doing this he passed the kitchen door, and both in going and coming he smelled gas, which caused him some alarm; that he called to the Chinese inside 'and told them to cut their fires until I could check on the nature of the leak.' He then went to the coal chute to disconnect the liquid line; that as he stooped over and before he had touched the connection the explosion occurred. He had not detected more than the normal odor of gas while making and undoing the connections at the coal chute. He was thrown across the alley and rendered unconscious. Later coal particles were found imbedded in the skin of his face.

Baird further testified that he didn't consider the installation safe because in case of failure or breakage of equipment or the rupture of a line, gas might be spilled in the opening; that he told the engineer he did not consider it safe, but that he had not so advised any other city official, nor the plaintiff, nor the tenants; that when the connections are properly made no gas is spilled in filling the tank; that as long as the tank and its fittings are in working order, no spilling or leakage occurs unless the operator is careless or negligent in filling it. He further testified that on two or three occasions he or one of his employees had been called to the cafe to reset burners or make repairs or adjustments on the gas ranges, and that on one of these occasions the oven door had been blown off the large range by an explosion of gas inside the oven; that the oven burner was not equipped with pilot light and that when the gas was left turned on an explosive mixture accumulated in the oven.

The witness Clarence Knudsen testified that he was distributor for the Knu-Gas Company, operating a business competitive with that of the defendant, American Butane Company, in Nampa; that he arrived on the scene shortly after the explosion, checked the valves on the delivery truck and the storage tank and found them closed. We assume that the valves referred to are the valves at each end of the 'liquid line' and 'vapor line', because the witness further...