Stenger v. Hope Natural Gas Co., 10735

• Decision Date: 22 November 1955
• Docket Number: No. 10735,10735
• Citation: 90 S.E.2d 261,141 W.Va. 347
• Court: West Virginia Supreme Court
• Parties: Joseph A. STENGER et al. v. HOPE NATURAL GAS COMPANY.

Page 261

90 S.E.2d 261

141 W.Va. 347

Joseph A. STENGER et al. v. HOPE NATURAL GAS COMPANY.

No. 10735.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 13, 1955.

Decided Nov. 22, 1955.

Syllabus by the Court.

1. 'In order to sustain a recovery against a utility company engaged in the distribution of natural gas for damages caused by the explosion of natural gas upon the premises of one of its consumers, there must be evidence sufficient to sustain a finding by the jury that the escape of the gas which caused the explosion was due to some negligent act of the defendant or that it escaped from some instrumentality entirely within the control of the defendant.' Pt. 1, syllabus, Agsten [& Sons] v. United Fuel Gas Co., 117 W.Va. 515 .

2. It is the duty of a gas company distributing gas to consumers and having the exclusive use and control of the gas line so used to use reasonable diligence to inspect and maintain such line.

3. It is not error to elicit the opinion of a witness by a hypothetical question which correctly states a necessary fact proved or admitted.

4. On appellate review of a case wherein a jury verdict has been rendered, it is the duty of the reviewing court to treat the evidence as being favorable to the verdict '* * * and give it the strongest probative force of which it will admit. So long as there is nothing so inherently or otherwise manifestly improbable in the character of the evidence as to justify the court in ignoring it, * * *'. Roberts v. Toney, 100 W.Va. 688, 693 .

William E. Glasscock, Morgantown, Howard F. Meek, Huntington, for plaintiff in error.

Charles S. Armistead, John D. Downes, Morgantown, for defendants in error.

LOVINS, President.

This action was brought by J. A. Stenger and his wife, Anna M. Stenger, in the Circuit Court of Monongalia County, against Hope Natural Gas Company for the recovery of damages resulting from an explosion and fire occurring in the residence of plaintiffs.

This Court, on a former writ of error, reversed a judgment in favor of the plaintiffs, set aside the verdict and remanded the case for a new trial. Stenger v. Hope Natural Gas Co., W.Va., 80 S.E.2d 889.

Many of the facts on this writ of error are substantially the same as shown in the record on the first writ of error. It would serve no useful purpose to restate such facts in detail. Reference is here made to the former opinion in Stenger v. Hope Natural Gas Co., supra. We deem it advisable, however, to restate some of the facts.

Plaintiffs were the owners of a dwelling house in which they resided, situate in Morgantown, West Virginia, on Fayette Street. Defendant is the owner of a gas pipe line which traversed such street in front of the plaintiffs' residence.

Almost immediately in front of plaintiffs' residence was a gate valve enclosed in a manhole. When rain fell, water collected around the gate valve and bubbles appeared on the surface of the water collected in the manhole. This condition had been noticed by persons using Fayette Street.

The Hope Natural Gas Company purchased the gas distribution system in the town of Morgantown from the West Penn Power Company in the year, 1950. It is shown that the condition at the gate valve had been reported to the former owner of the distribution system by Stenger, but no such report had been made to the Hope Natural Gas Company by him.

On the morning of January 27, 1952, Mr. and Mrs. Stenger left their residence at different times to go to their place of business located nearby. Mr. Stenger returned about 11 A.M. Before he entered the building, an explosion occurred, blowing debris out in the front yard of the residence. Stenger was struck by the debris and dazed for a short time; however, he was not seriously injured. The city fire department was called and the fire was extinguished.

The gate valve was shut off and a fire at or near the sun porch on the front of the Stenger residence ceased to burn. The residence was rendered almost useless and a considerable number of articles of furniture were destroyed or damaged. The damage to the house and the furniture will be hereinafter discussed.

The record in the instant case is similar as to numerous facts shown in the record before this Court on the first writ of error.

In addition to the testimony contained in the record on the first writ of error the present record discloses that Joseph Bierer, a civil engineer, testified as an expert witness on behalf of the plaintiff, in addition to David B. Reger, another expert witness. Reger testified on the former hearing and there is no substantial difference between his former testimony and his testimony shown in this record.

Bierer testified that he had visited the Stenger residence four times within the last six months, spending from one to four hours on each visit; that he examined the basement, first floor, second floor and one room on the third floor, as well as the sun porch. He also examined the outside of the building to determine the extent of damages as to displacement of materials and the result of the fire.

According to his testimony, considerable damage was done in the basement by fire, but there is no evidence of an explosion. The fire in the basement was confined to the room at the foot of the stairway, the northeast room and the furnace room. He bases his conclusions as to absence of an explosion in the basement on the fact that no windows in the basement were blown outward nor were the partitions or walls displaced.

This witness testified that on the first floor a glass door, window and window panes were blown outward, the east wall was displaced outward and that there was clear indication of an explosive force in the kitchen from the condition of the windows and outside walls of the kitchen and living room.

There was no evidence of an explosion on the second floor of the Stenger residence.

This witness testified that he found an opening of about four inches in width leading from the inside of the basement to a space under the sun porch.

Bierer stated from his examinations, it was his opinion the explosion and fire was caused by gas escaping from the leaky gate valve which permeated the Stenger residence and caused the explosion. He explained that gas is lighter than air and tends to seek a higher level when confined in a room and accumulates downward. He explained the escape of gas from the leaky gate valve by testifying that there was porous earth along the service line which leads from the street to the Stenger residence. He also testified that all indications found by his examinations showed that gas escaped from a broken gate valve and that the explosion occurred on the first floor.

It is to be noted that Mr. and Mrs. Stenger did not smell gas on the morning of the explosion. The witness explained that fact by testifying that the gas collected toward the ceilings of the rooms in the house rather than at lower levels; that gas having a tendency to follow a surface, would not be diffused in a room until a considerable amount had collected. The testimony of Bierer is in conflict with other expert testimony.

Defendant contends that there is not sufficient evidence to go to the jury; that the introduction of certain testimony over their objection was error; that the court erred in failing to strike out certain testimony admitted over its objection; that the plaintiffs did not prove any negligence on the part of defendant or that such negligence was the proximate cause of the explosion and fire; that it was error to refuse the defendant's peremptory instruction; that it was error to give plaintiffs' instruction number 1; that the judge of the trial court committed error in making certain remarks when ruling on defendant's motion to direct a verdict for defendant; that the verdict of the jury is excessive.

We are aware that the opinion of this Court in Stenger v. Hope Natural Gas Co., supra, on the first writ of error, constitutes the law of the case insofar as the record then existed.

We adhere to the holding on the former writ of error as to the insufficiency of evidence then presented. But in the instant case, we have credible and reasonable evidence, in addition to that formerly presented. The witness Bierer, whose evidence has been heretofore reviewed at some length, together with other facts proved by plaintiffs, furnishes a basis for an inference that the fire and explosion in the Stenger property came from the leaky gate valve situate on Fayette Street, owned by operated by the defendant company.

Gas being of such nature that it is not detectable except by the sense of smell, that situation renders it difficult to actually trace the gas from one point to another. We are confronted with the several outstanding facts: A broken and leaky gate valve in front of the Stenger residence under 35 pound pressure which caused water standing around such valve to bubble, a gas fire burning under the sun porch of the Stenger residence which ceased to burn when the gate valve was shut off and the presence of gas in other buildings located near the Stenger residence detected by the explosometer.

The record in this case presents a somewhat unusual factual situation. In Moore v. West Virginia Heat & Light Co., 65 W.Va. 552, 64 S.E. 721, this Court stated the principle that the burden is on the plaintiff to establish liability, and that evidence which gives rise to conjecture is not sufficient. In Agsten & Sons v. United Fuel Gas Co., 117 W.Va. 515, 186 S.E. 126, 127, we find the following rule enunciated in the first point of the syllabus: 'In order to sustain a recovery against a utility company engaged in the distribution of natural gas for damages caused by the explosion of natural gas upon the premises of one of its consumers, there must be evidence sufficient to sustain a finding by the jury that the escape of the gas which caused the explosion was due to some negligent act of the defendant or that it...