Warfield Natural Gas Co. v. Wright

• Decision Date: 16 December 1932
• Citation: 246 Ky. 208
• Parties: Warfield Natural Gas Co. v. Wright. Same v. Caines.
• Court: United States State Supreme Court — District of Kentucky

Page 208

246 Ky. 208

Warfield Natural Gas Co. v. Wright.

Same v. Caines.

Court of Appeals of Kentucky.

Decided May 31, 1932.

As Modified on Denial of Rehearing December 16, 1932.

1. Gas. — In action against gas company for injuries sustained in basement gas ignition, evidence held to make case for jury.

2. Gas. — In action against gas company for injury sustained in basement gas ignition, instruction regarding company's duty in manitaining pipe line held not objectionable.

Instruction placing duty on the gas company to use ordinary care to maintain and inspect its pipe lines in order to discover and remedy any defective condition was not objectionable because the company's liability was based on a failure to exercise such care only in its maintenance, since the duty to maintain embraced the duty to inspect, and, if the jury did not consider maintenance to include inspection, the company secured an advantage instead of suffering a disadvantage.

3. Trial. — Instructions must be considered together.

4. Trial. — Refusing requested instructions which were given in substance held not error.

5. Trial. — In action against gas company for injury sustained in basement gas ignition, instruction that, if jury believed evidence of company's witnesses, they could not find against it, held properly refused under evidence.

6. Damages. — Plaintiff burned by gas fire in basement held entitled to compensation for mental as well as physical pain arising from his experience and alteration in his body.

7. Damages. — Difficulty in estimating compensation for mental and physical pain held not ground for denying recovery thereof.

8. Damages. — Estimation of compensation for mental and physical pain must depend on good sense, sound judgment, and enlightened conscience of jury under all circumstances of each particular case.

9. Damages. — $45,000 damages to 52 year old man for total loss of earning capacity, which was $1,400 or $1,500 yearly, for loss of sight and other serious injuries, held not excessive.

Evidence tended to disclose that, as result of burns, plaintiff suffered loss of sight, that tear ducts did not drain through internal passages of eyes, that wind, dust, light, and foreign matter irritated and pained his eyes, that scars on plaintiff's face were deep and severe and a constant source of irritation, that growth of plaintiff's beard and shaving pained and irritated his face, that parts of his ears and nose were burned off, that plaintiff's mouth was so deeply and

severely burned as to draw and greatly contract the muscles and flesh, that plaintiff's wrists, hands, and fingers were stiff, that he was unable to dress or undress himself or to attend the functions of nature, and that without assistance he could not feed himself, that his nights were restless and his sleep broken.

10. Damages. — $15,000 damages for extensive burns, loss of part of nose and ears, sears on face and stiffness of hands and fingers, causing impairment of general health, held not excessive.

11. Trial. — Permitting joint trial of two actions against gas company for injuries sustained in basement gas fire held not abuse of discretion.

Appeal from Boyd Circuit Court.

DYSARD & TINSLEY, KIRK & WELLS, and B.J. PETTIGREW for appellant.

MARTIN & SMITH for appellees.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

About 6 o'clock in the evening of October 10, 1929, James Wright, accompanied by Frank Caines, struck a match on the ceiling of the basement of his dwelling. Free gas, whose presence the men did not realize, instantly ignited, set fire to their clothing, and seriously burned them. Suits against the Warfield Natural Gas Company, charging their injuries were due to its negligence, resulted in a verdict for $45,000 in favor of Wright and for $15,000 in favor of Caines.

The basic issues on the trial were whether the gas was natural gas or methane gas, commonly called coal gas, and sometimes marsh gas; if found to be natural gas, whether it had escaped from the defendant's high-pressure pipe line close by; and, if so, whether the defendant had been negligent in relation to its maintenance.

Sharp questions are presented on the appeal as to whether the defendant was entitled to peremptory instructions, and whether the verdicts are sustained by the evidence.

1. The place of the accident was in the village of Beauty, or Himlerville, in Martin county. The house is built on a hillside; the rear of the basement being wholly above the surface and the front of it underground. It contains two large rooms, with an outside door and four windows. Smaller storage rooms are at the front. Wright had moved into this house on October 9, 1929, after it had been closed up for some time. On the next day he cleaned out the basement, having the doors and windows open. He had smelled an odor in there like something rotting, but detected no fumes of natural gas, with which odor he was acquainted through domestic use elsewhere. There was nothing of a combustible nature in the basement. About 4 o'clock in the afternoon, Wright closed the basement and went to his former home to get his chickens. A friend, the appellee Caines, returned with him about 6 o'clock, and Wright took him to the basement to show it to him. He found the electric light globe exhausted, and struck a match on the ceiling. Instantly the men were enveloped in flames, and ran out toward the creek, which they found to be dry. They tore off their burning clothing, but their bodies were horribly burned. There was no detonation — only a thud. A door slammed, but not even a window glass was broken. Neighbors who arrived quickly on the scene put out a little fire in the ceiling of the room, and some burning clothing on a line in the basement was extinguished. The casing of the outside door was smouldering, and, when torn off, there appeared a small "bluish" flame, as of gas, between the concrete wall and door facing. Through the back yard and garden, within fourteen to twenty feet of the house, ran an eight-inch gas pipe line of the appellant, Warfield Natural Gas Company, carrying twelve million feet of gas daily under a pressure of fifty-two pounds. It had been there about thirty years. When this house was built seven or eight years before the accident, the yard was filled, and this pipe line covered to a depth of seven or eight feet with rock, shale, laminated coal, and soil. No gas was used in the building, and there was no direct connection between it and this pipe line or any other source of supply.

That night, fire tests were made in the back yard. These tests consisted of making a shallow excavation and driving a rod or probe into the ground and applying a lighted match to the hole thus made. Gas exuded from them sufficient to ignite momentarily. During the night the pipe line was uncovered in sections. As that was done, water seeped into the excavations and covered the pipe. According to several witnesses, the line, though rusty, was in good condition save for a hole about the size of a toothpick. It was first plugged with a wood peg, but later a steel punch was driven in, which increased the hole to about three-sixteenths of an inch. A section of the pipe containing such a hole was produced on the trial and identified as having been taken from the place. According to two witnesses introduced by the plaintiffs, the pipe line was badly corroded, scaley, and, in addition to some little perforations, had a hole in it an inch or more in diameter, and the escaping gas could be seen and heard. But, it should be said, other witnesses and all the circumstances tend to show such testimony to be an exaggeration.

The pipe line lay between Buck creek and the house. For twelve years, mine water, containing sulphur, had been pumped into Buck creek about a thousand feet above this point. The creek was at this time, and often before, dry, and it is contended the mine water seeped into the porous ground to the pipe line, and the evidence is that its acids readily eat holes in and destroy the metal. The plaintiffs contend that natural gas escaping from the defective pipe line percolated through the porous made-ground into the basement of the building. They point to the saturated condition of the yard that night and to the gas flame in the doorway, which was between the point of ignition and the pipe line, and this indicates the gas came from it, since it is shown that the blaze in such instances travels toward the source of supply. One of the two witnesses mentioned testified that the appearance of the surface in the yard indicated the presence of a large leak for an extended length of time.

On the claim that the gas seeped from the pipe line into the basement, its construction is important. The outside and inside walls are of concrete, ten inches thick, and at the rear extend three feet or more in the ground. Back of the basement is another foundation supporting a porch. It and pavements on either side of the house are also of cement. The basement in part had been filled to a depth of two or three feet with gravel, cinders, and sand, and a tongue-and-groove pine floor laid upon it. The defendant introduced proof to show that it would have been impossible for the slight quantity of gas which may have escaped from the hole found in its pipe line, twenty feet from the house, to have percolated laterally through the ground, under the sidewalks and concrete foundations and up through the floor; and that, if the hole had been as big as the two witnesses for the plaintiffs testified, the gas would long before have risen directly to the surface immediately over the line, been easily detected, and given prominent evidence of the defect. As stated, the pipe line was laid two or three feet below the original surface, and the yard above it and between it and the house had been filled so that the made earth was quite porus, except a coating of clay on top. Appellees say the covering of clay...