Thrasher v. Amere Gas Utilities Co., 10491

• Citation: 138 W.Va. 166,75 S.E.2d 376
• Decision Date: 17 June 1953
• Docket Number: No. 10491,10491
• Court: Supreme Court of West Virginia
• Parties: THRASHER, v. AMERE GAS UTILITIES CO.

Page 376

75 S.E.2d 376

138 W.Va. 166

THRASHER, v. AMERE GAS UTILITIES CO.

No. 10491.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 20, 1953.

Decided March 31, 1953.

Dissenting Opinion April 16, 1953.

Rehearing Denied June 17, 1953.

Syllabus by the Court.

1. As a general rule photographs of persons, things, and places, when duly verified and shown by extrinsic evidence to be faithful representations of the objects they purport to portray, are admissible in evidence as aids to the jury in understanding the evidence; and whether a particular photograph or groups of photographs should be admitted in evidence rests in the sound discretion of the trial court and its ruling on the question of the admissibility of such evidence will be upheld unless it clearly appears that its discretion has been abused.

2. 'Expert opinion evidence concerning a matter as to which the jury are as competent to form an accurate opinion as the witness, is inadmissible.' Point 7, Syllabus, Lawrence's Adm'r v. Hyde, 77 W.Va. 639 .

3. 'The allowance of a view by a jury is within the discretion of the trial court, and its refusal is not ground for reversal unless it is clearly manifest that a view was necessary to a just decision, and that the refusal operated to the injury of the party asking it.' Point 4, Syllabus, Compton v. County Court of Marshall County, 83 W.Va. 745 .

4. When the material facts, though undisputed, are such that reasonable men may draw different conclusions from them, the questions of negligence and contributory negligence are for the jury.

5. Refusal to give an abstract instruction is not reversible error.

6. Duplication of instructions is neither desirable nor necessary.

7. An instruction which incorrectly states the law should be refused.

8. An instruction which is not sustained by the evidence should be refused.

9. 'One who has committed a breach of duty is liable for its natural and proximate effects, which may be immediate or through the subsequent media of natural forces or other innocent causes.' Point 1, Syllabus, Mills v. Indemnity Insurance Company of North America, 114 W.Va. 263 .

10. 'If an injury is the natural and probable consequence of an act done under such circumstances and with such knowledge, as ought to have disclosed the danger to an ordinarily prudent person exercising reasonable foresight, the actor is guilty of negligence in the premises and legally liable in damages for the injury.' Point 2, Syllabus, Fields v. Director General of Railroads, 86 W.Va. 707 .

11. When a case has been tried and the questions of fact arising in it have been submitted to a jury and a verdict has been fairly rendered, and the trial court has committed no error of law, this Court will not disturb the verdict unless manifest wrong or injury has been done or it clearly appears that the verdict is contrary to the weight of the evidence or that it is without any evidence to support it.

B. J. Pettigrew and T. E. Pettigrew, Charleston, Sherman Ballard, Peterstown, C. E. Goodwin, Charleston, for plaintiff in error.

Andrew Detch, John L. Detch and Francis S. Davis, Lewisburg, for defendant in error.

HAYMOND, President.

Upon the trial of this action of trespass on the case, instituted in the Circuit Court of Greenbrier County by the plaintiff, Bertha S. Thrasher, to recover from the defendant, Amere Gas Utilities Company, a public utility which supplies gas to residences and business establishments in the City of Ronceverte in that county, damages which resulted from the alleged negligent location and maintenance of a service pipe through and across a covered portion of the channel of a small stream known as Montgomery Branch in that city, which obstructed the channel and caused the water from the stream to overflow and inundate the property of the plaintiff, a jury returned a verdict for the plaintiff for $3,300. The circuit court overruled motions of the defendant to set aside the verdict and grant it a new trial and in arrest of judgment and on December 6, 1951, entered judgment against the defendant for the amount of the verdict with interest and costs. To that judgment this Court granted this writ of error upon the application of the defendant.

The plaintiff is the owner of a parcel of improved land composed of three contiguous lots located at the northeast corner of Frankford Road and Main Street in the City of Ronceverte, in Greenbrier County. Frankford Road which in that area is designated as W. Va.--U. S. Route No. 219 extends almost due north from its intersection with Main Street for a distance of several hundred feet and Main Street crosses Frankford Road on approximately a right angle and extends east and west of the intersection. The traveled portion of each street is improved with hard surfacing material. The right of way of Frankford Road, where it passes the land of the plaintiff, is fifty feet in width.

East of the improved portion of Frankford Road and generally parallel with it is Montgomery Branch, a small natural watercourse, which flows in a southerly direction through the land of the plaintiff and is located between a brick building on the land of the plaintiff and Frankford Road. From a point 698 feet north of the norther line of Main Street at its intersection with Frankford Road to the northern line of Main Street at the intersection the width and the depth of the stream vary. The stream between the points just indicated is on a steep grade and the bottom of the stream at the northern line of Main Street at the intersection is 34.2 feet below the bottom of the stream 698 feet north of the intersection.

From the northern line of the parcel of land owned by the plaintiff to a point approximately seventy to eighty feet south of that line the stream is entirely within that parcel and from that point until the stream passes under Main Street south of the land of the plaintiff the western bank of the stream is on the right of way of Frankford Road. The stream or some part of it passes through the land of the plaintiff for a distance of approximately 150 feet and is completely confined by a wall on each side and is enclosed for a distance of approximately 130 feet by a top or cover of ten or twelve inch reinforced concrete slabs which the plaintiff caused to be constructed shortly after she purchased the land in 1936 and which replaced a wooden top or cover which was previously placed above and across a part of the stream. At that time the plaintiff also improved the land by constructing a brick building and by paving the space between it and the concrete cover over the stream with additional concrete slabs.

From the northern boundary of the land of the plaintiff to the northern line of Main Street at its intersection with Frankford Road the distance between the walls or the sides of the stream is from ten to thirteen feet and the distance from the bed of the stream to the bottom of the concrete cover is from six to eight feet. Between the northern line of Main Street at its intersection with Frankford Road and a point 698 feet north of that line several segments of the stream are covered by different materials placed above and across the stream in connection with buildings under which it flows and other portions of the stream in that area are uncovered and open to view.

In 1929 the defendant obtained a franchise from the City of Ronceverte which authorized it to construct a gas service pipe line at a depth of at least twelve inches below the surface of Main Street, and pursuant to that authority it laid a line of metal pipe about six inches in diameter beneath the surface of Main Street across its intersection with Frankford Road and through the sides of the channel of Montgomery Branch on a right angle at an elevation above the bottom of the channel of about one half to two thirds of the distance between the bottom of the cover and the bed of the stream. The pipe through and across the channel has been maintained by the defendant in that position with the knowledge of its proper representatives since 1936, and because of the concrete slabs which replaced the wooden cover over the stream the pipe has been concealed beneath the surface of Main Street. Near and north of the location of the pipe, the channel curves slightly to the west as it passes under Main Street. The location of the pipe in Main Street is from six to eight feet south of the northern line of the street at or near its intersection with Frankford Road and is approximately thirty feet south of the southern wall of the brick building on the land of the plaintiff.

The conditions and the locations mentioned and described in the preceding paragraphs of this opinion existed when the injuries complained of occurred to the property of the plaintiff; and at that time the brick building and the paved space in front of it and between it and the eastern line of the right of way of Frankford Road were leased by the plaintiff to a tenant who utilized the premises in operating an Esso service station.

In the afternoon of June 9, 1951, rain fell in Ronceverte and in the area between Ronceverte and Lewisburg which increased the volume of water in Montgomery Branch and caused it to rise rapidly. The rain was variously described by different witnesses as 'an ordinary rain', a 'hard' rain, a 'right hard' rain, a 'pretty hard' rain, 'a little harder rain than usual', 'an unusually hard rain', and an 'especially heavy rainfall'.

Three witnesses who were connected with business establishments located in buildings fronting on Frankford Road constructed across and over Montgomery Branch within a range of 400 feet north of the intersection of Frankford Road and Main Street testified concerning the water in the stream and on Frankford Road during the storm. One of these witnesses, whose place of business is approximately 300 feet upstream from the property of the plaintiff stated that there was an unusual amount of...