Sternbock v. Consolidated Gas Utilities Corporation

• Decision Date: 27 January 1940
• Docket Number: 34434.
• Citation: 98 P.2d 162,151 Kan. 81
• Parties: STERNBOCK v. CONSOLIDATED GAS UTILITIES CORPORATION.
• Court: Kansas Supreme Court

98 P.2d 162

151 Kan. 81

STERNBOCK v. CONSOLIDATED GAS UTILITIES CORPORATION.

No. 34434.

Supreme Court of Kansas

January 27, 1940

Syllabus by the Court.

Natural gas is a highly dangerous agency, and hence persons engaged in transporting it are held to a high degree of care in laying, inspecting, and maintaining their transportation facilities, so as reasonably to protect the life and property of their customers and of others in close proximity.

Direct proof of negligence is not essential to recovery, since negligence may be established by circumstantial evidence alone.

Where circumstances proved fairly justify inference of negligence on part of a transporter of natural gas in laying inspecting, or maintaining its service pipes, the evidence is sufficient to take the case to the jury.

Circumstantial evidence in a civil case, to be sufficient to sustain a verdict, need not rise to that degree of certainty that will exclude every reasonable conclusion other than that reached by the jury.

In action against gas company for damage to personalty in plaintiff's shoe store from fire allegedly caused when gas escaping from defective pipes was ignited, evidence was sufficient to sustain a finding that the fire was occasioned by leaks in company's pipes.

In ruling on a demurrer by defendant to plaintiff's evidence, court would consider only evidence favorable to plaintiff, give full credence thereto, and construe the evidence and all reasonable inferences to be drawn therefrom in light most favorable to plaintiff.

In action against gas company for damage to personalty in plaintiff's shoe store from fire allegedly caused when gas escaping from defective pipes was ignited, question of proper diligence on company's part in inspecting and maintaining pipes was for jury under the evidence.

The rule that where error complained of does not prejudice a party's substantial rights it must be disregarded is applicable where errors or defects in instructions become nonprejudicial by reason of special findings. Gen.St.1935 60-3317.

In action against gas company for damage to personalty in plaintiff's shoe store from fire allegedly caused when gas escaping from defective pipes was ignited plaintiff's testimony concerning the value of the personalty destroyed was competent, where he was conversant with the value of the personalty and had been engaged in the shoe business for a great many years.

1. Natural gas is a highly dangerous agency and persons engaged in transporting it are held to a high degree of care in laying, inspecting and maintaining their transportation facilities to the end that they may reasonably protect not only the life and property of their customers, but also the life and property of others in close proximity thereto.

2. Direct proof of negligence is not essential to recovery, as negligence may be established by circumstantial evidence alone. Where circumstances proved fairly justify the inference of negligence on the part of a transporter of natural gas in laying, inspecting or maintaining its service pipes, the evidence is sufficient to take the case to the jury.

3. Circumstantial evidence in a civil case, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than that reached by the jury.

4. Negligence after notice to, or personal knowledge of, a transporter of natural gas concerning defects in its service pipes is not the only basis of liability for damage. While liability of a distributor of natural gas does not attach, in the absence of a reasonable basis for anticipating damage that fact does not relieve the distributor from such diligent and adequate inspection of its transportation and service facilities as may be necessary to ascertain whether a reasonable basis to anticipate damage actually exists.

5. Distributors of natural gas are liable for injury to person or damage to property resulting from failure to exercise degree of care commensurate to the danger involved.

6. In ruling on a demurrer courts consider only evidence favorable to the party adducing it, give full credence thereto, and construe the evidence and all reasonable inferences to be drawn therefrom, in the light most favorable to the party adducing it.

7. Where special findings of a jury render conflicting instructions nonprejudicial, the error must be ignored.

8. The owner of property is ordinarily presumed to know its value and while his opinion testimony of its value may not be very persuasive, it is competent.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action by Julian Sternbock against the Consolidated Gas Utilities Corporation and another to recover damages to personalty in plaintiff's shoe store and incidental damages resulting from the ignition of natural gas. From an adverse judgment, the named defendant appeals.

Judgment affirmed.

R. R. Rittenhouse and Walter D. Hanson, both of Oklahoma City, Okl., and Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L. Morris, George B. Powers, Carl T. Smith, C. H. Morris, and John F. Eberhardt, all of Wichita, for appellant.

W. E. Holmes, Howard L. Baker, Edward F. Arn, Allen B. Burch, and Henry Martz, all of Wichita, for appellee.

WEDELL Justice.

This was an action to recover damages to personalty in plaintiff's shoe store and incidental damages resulting from the ignition of natural gas which it was alleged was occasioned by defective gas lines owned by two commercial gas companies in the city of Wichita. The defendants, the Gas Service Company, and the Consolidated Gas Utilities Corporation, each serviced certain occupants of the building in which plaintiff's store was located. Separate demurrers to plaintiff's evidence were interposed by defendants, but only the demurrer of the Gas Service Company was sustained. The other defendant has appealed.

The first complaint of the Consolidated Gas Utilities Corporation, to which we shall hereafter refer as the defendant, concerns the ruling on its demurrer. It is, of course, elementary that in ruling on a demurrer to evidence courts consider only evidence favorable to the party adducing it, give full credence thereto, and construe all evidence and reasonable inferences to be drawn therefrom, in the light most favorable to the party adducing it. Meneley, by Myers, v. Montgomery, 145 Kan. 109, 64 P.2d 550; State v. Linville, 150 Kan. 617, 95 P.2d 332; Trezise v. State Highway Comm., 150 Kan. 845, 96 P.2d 637. Applying these principles we shall review plaintiff's evidence which was in substance as follows:

Plaintiff operated a shoe store in the city of Wichita on the ground floor of a building which faced the south. The building was approximately 125 feet long and 25 feet wide. The rear twelve or twelve and one-half feet of the building was used for a store room which was separated from the front portion by a wall which did not extend to the ceiling. There was no basement under the building and the gas furnace which heated plaintiff's portion of the building was located in about the center of the store room. The store room had a wooden floor and there were some cracks in the floor. There was an air space of approximately a few feet between the ground and the floor. In the northeast corner of the store room there was located a small wash room. The gas meters of both defendants were attached to the wall of the wash room. The defendant on the date of the fire and for some period prior thereto had not sold gas to the plaintiff but was servicing other occupants of the second floor. The Gas Service Company was servicing plaintiff's furnace at the time of the fire. The main service lines of both gas companies were buried in the ground underneath the pavement in the alley which ran east and west immediately north of the building. The alley was approximately twenty feet in width. Immediately adjacent to the north of the building was a cement walk approximately two feet in width. The service lines of both gas companies were iron pipes of about an inch or an inch and a quarter in diameter. Both lines entered the building from the north. The Gas Service Company's line entered the building above plaintiff's ground floor. Defendant's line entered the building below that floor. The service line of the Gas Service Company was buried in the alley to a depth of approximately fifteen inches. The service line of the defendant was three or four inches lower. The lines were approximately twelve to fourteen inches apart.

The fire occurred on Saturday, January 16, 1937, between three and four-thirty o'clock in the afternoon. There was no explosion. The gas simply ignited and the fire and damage ensued. Plaintiff's store had become cold at the time above indicated and he went to the store room to light the furnace. He discovered the furnace had gone out. He turned off the gas and waited for some period of time for the gas in the furnace, if any, to get out of the furnace before he tried to light it. He then struck a match to light the furnace and shortly thereafter noticed some small flames coming up through the openings in the floor northeast of the furnace and from five to ten feet from where he was standing. He ran into the wash room for water to put out the fire and while in the wash room noticed a fire coming through the floor right at the pipes which ran to the meters. He poured the water on the last mentioned flames and got another bucket of water to extinguish the flames outside of the wash room. When he came out of the wash room he observed another flame which was coming from underneath the floor molding on the west side of the building. He next observed the flames coming through the floor at...