Warfield Natural Gas Co. v. Wright

• Decision Date: 31 May 1932
• Citation: 246 Ky. 208,54 S.W.2d 666
• Parties: WARFIELD NATURAL GAS CO. v. WRIGHT. SAME v. CAINES.
• Court: Kentucky Court of Appeals

54 S.W.2d 666

246 Ky. 208

WARFIELD NATURAL GAS CO. v. WRIGHT.

SAME v. CAINES.

Court of Appeals of Kentucky

May 31, 1932

As Modified on Denial of Rehearing December 16, 1932.

Appeal from Circuit Court, Boyd County.

Separate actions by James Wright and by Frank Caines against the Warfield Natural Gas Company. The cases were tried together. From adverse judgments, defendant appeals.

Judgment in each case affirmed.

THOMAS and REES, JJ., dissenting.

Dysard & Tinsley, of Ashland, Kirk & Wells, of Paintsville, and B J. Pettigrew, of Charleston, W. Va., for appellant.

Martin & Smith, of Catlettsburg, for appellees.

STANLEY C.

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 under ground. 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 porous, except a coating of clay on top. Appellees say the covering of clay confined the gas and permitted its lateral percolation.

As further negativing the claim that it was natural gas in the house, defendant points out that the building was not damaged and there was no explosion such as natural gas produces. Had it been natural gas, according to experts, the explosion would have "blown the roof off the house." Again, attention is called to the failure of Wright in the afternoon to detect its presence. The color of the flashes produced by lighting the gas in the test holes that night is described by some witnesses as not being that of natural gas, but rather of methane gas; and the "bluish flame" at the doorway was only "presumed" by the witness to be natural gas.

Affirmatively, evidence was heard tending to establish the existence in that part of the country of methane or coal gas, which comes from disintegrating shale, present in vast quantities. This gas is odorless, while natural gas, as expressed by one of the mining engineers, has an odor similar to that of ether or garlic--like that described by Wright to have been in the basement that day. Reference is made to numerous "burning springs" in the community which are said to be of this gas; and one of the plaintiff's material witnesses has for several years used this gas taken from an incased water well as a fuel supply. It had been observed bubbling through the water of Buck creek near the Wright house. Opposing this is evidence that the "burning springs" had ceased years ago when development of the gas field began, and the existence of exuding gas was denied. It was also stated that no one had heard of an accumulation of methane gas in that country igniting or exploding.

Mining engineers, equipped with an approved machine for scientifically detecting the presence of gas in mines, came to the scene shortly before the trial and long after the old pipe had been replaced, and found gas in small quantities present about the place, including a trace in the basement. The machine, however, did not distinguish the two gases; natural gas being about 80 per cent. methane. From their knowledge and the tests made, these experts stated that the ground in the vicinity is constantly emitting methane gas, and they expressed the professional opinion upon those observations and upon hypothetical questions submitting immediate occurrences and conditions that there was no possibility for natural gas from the defendant's pipe line to have caused the plaintiffs' injuries.

It was proven by defendant that the pipe line was...