Westfield Gas Corp. v. Hill, 19075
| Decision Date | 28 October 1960 |
| Docket Number | No. 1,No. 19075,19075,1 |
| Citation | 131 Ind.App. 558,169 N.E.2d 726 |
| Parties | , 96 A.L.R.2d 996 WESTFIELD GAS CORPORATION, Appellant, v. Emma HILL, Appellee |
| Court | Indiana Appellate Court |
Campbell, Campbell, Malan & Kyle, Noblesville, Stewart & Richardson, Lebanon, for appellant.
Christian, Waltz & Klotz, Noblesville, Parr, Parr & Parr, Lebanon, for appellee.
This is an action to recover damages for personal injuries arising out of an explosion which occurred in the basement of a dwelling house in the town of Westfield.
The complaint essentially charged the appellant with having owned, maintained and operated a gas line along the east side of Union Street in the town of Westfield, between the sidewalk and curb, in front of the house owned and occupied by Ella Davis, in which appellee was visiting on November 14, 1953; that said house sat 50 feet east of said curb; that the basement was under the west central part of said house within a distance of 60 feet of said gas line; that said gas mains and pipes were old and leaky and out of repair and had been in the ground for many years and allowed gas to leak into the cellar and basement of the said house; that appellee struck a match in said cellar and the gas, which appellant had negligently allowed to escape, exploded with great force and badly burned the appellee; also, that appellant made no inspection and did not attempt in any way to determine the condition and fitness of said lines and mains before attempting to transmit gas through same; further, that as a result of the carelessness and negligence of appellant, appellee was injured and suffered damages in the sum of $15,000.
Verdict of the jury and judgment was in favor of the appellee assessing damages in the sum of $4,200.
Appellant's sole assignment of error was the overruling of its motion for a new trial .
Appellant's first unwaived cause assigned was that the verdict was not sustained by sufficient evidence and is contrary to law. It supports this contention by arguing that (1) there was no evidence that the explosion causing appellee's injuries was caused by gas of appellant--that it might have been caused by (a) fuel oil by which the house was heated, (b) propane gas which might have leaked from one or both propane gas tanks located immediately outside of the house near the open door leading to the basement where the explosion occurred, or (c) sewer gas seeping into the basement. Appellant further argues that even if the explosion was caused by gas of appellant (a) there was no proof of any negligence on the part of appellant in transmitting gas through mains, (b) that there was no knowledge on the part of appellant of any leak in the gas main near the property of appellee's host, (c) and that the break in the main transporting the gas might have been caused by an act of God, or vis major, either by unsettled ground conditions or the contraction of the cast iron pipe caused by the cold weather.
Reviewing the evidence most favorable to appellee pertaining to the above points urged by appellant in its argument that there was insufficient evidence of negligence of appellant, we are confronted with the following: Appellee, a widow approximately eighty-five years of age and dependent on Public Welfare for her subsistence, lived with and helped care for her sister-in-law, who was also a widow approximately the same age as appellee and who was confined to a wheelchair with a broken hip. On November 14, 1953, about noon, appellee descended the basement steps at the home of her sister-in-law, which we will hereafter refer to as the Davis House, to get a can of tomatoes which she found to be spoiled. She flicked on the light switch, and then went back upstairs to get some matches. She then re-entered the basement, bent over to the concrete floor in front of an old safe where the canned goods were located, struck a match on the floor, and an explosion immediately occurred catching her dress on fire and severely burning her about the legs, hands and face. She remembered nothing at the time except the flash of fire coming up around her. Her dress was still on fire when she ascended the basement steps to the outside of the Davis House and entered the Davis House through the outside door near the basement door.
The Davis House was not supplied by gas furnished by the appellant. It was heated by fuel oil. An apartment, and three rooms above, on the north side of the Davis House in which lived a family by the name of Bauers, was heated by a fuel oil heater which was burning at the time of the explosion. The Bauers cooked with propane gas supplied by a gas company other than appellant. This propane gas at the time of the explosion was contained in two tanks located outside the Davis House about four or five feet above the ground level and near the basement door which was left open by the appellee at the time of the explosion. Copper tubing ran from these tanks up through the walls to connect with the cookstove in the Bauers apartment. When the explosion occurred neither the oil stove in the Davis House nor the propane gas stove of the Bauers exploded.
When the explosion occurred, appellant was transporting a type of gas known as liquid-petroleum gas maintained in the two-inch gas line at a pressure of approximately a half pound per square inch. This type of gas is not as heavy as propane gas which was also provided to customers of appellant. The gas main of appellant transporting such gas was approximately 60 feet west of the west side of the Davis House running parallel between the curb and sidewalk on the east side of the street in front of the Davis House.
The transporting gas main was a two-inch I.D. cast iron pipe buried approximately 24 inches in the ground and above a two-inch cast iron water line. This water line had been installed first and was buried approximately 48 inches deep in order to prevent freezing. There was no connecting service line running to the Davis House from this gas main. Although appellant's witness testified that there was an old gas service line running to the Davis House from an old gas line installed about fifty years previously, there was no evidence of where this line was located.
Immediately after the explosion a gas flame approximately 15 inches high was observed by several witnesses near the center of the house on the north side in an excavated area that had been dug several years previously in an unexcavated portion of the basement. The excavation was about four or five feet deep and had been made for a new footing for a rebuilt chimney. The appellant was notified immediately of the explosion, and one of its employees came, observed the flame, and started making tests outside the Davis House for gas leaks, finding a leak about 40 feet north of the Davis property.
The gas was shut off in the main about an hour after the employee of the gas company had reached the Davis House. The flame in the basement was then about 12 or 15 inches high, according to one witness for appellee. One hour after the gas was shut off it had diminished an inch. Two hours after the gas was shut off it was about eight inches high. It burned for four hours after the gas was shut off, and there was only a spark of flame when the employee of appellant put it out.
There was disputed testimony as to whether or not the appellant's employee had knowledge of a leak in the gas line near the Davis House a few days prior to the explosion. There was also evidence, although disputed, that immediately after the explosion the odor of gas could be smelled in the Davis basement.
Considering all of this evidence in the bill of exceptions, we are of the opinion that it is reasonable for the jury to infer that the explosion was caused by gas leaking from mains of appellant. We believe that it is reasonable for the jury to infer that the leaking gas was percolating through the ground or through unascertained pipes in the ground from the leak into the basement, particularly in view of the fact that the flame did diminish after the valve in the main gas line was shut off. True, it did not immediately stop as it perhaps would have if the gas had been contained in a line. However, since the liquidpetroleum gas of appellant was not under high pressure and was very volitionary, meaning it flows freely, as testified to by a witness for appellant, we believe it is reasonable for the jury to infer that this gas was seeping or percolating into the basement of the Davis House, unknown to appellee at the time she struck the match causing the explosion and her subsequent injuries.
Also, although disputed, witnesses for appellee testified it was appellant's gas that caused the explosion.
Since there was evidence of probative value from which the jury might have drawn a reasonable inference that the gas of appellant was the gas that exploded, we cannot disturb the verdict--and since the jury found for appellee, we must presume that the jury determined that appellant's gas caused the explosion.
Next, we are confronted with appellant's argument that there was no negligence with which appellant could be charged, and that the leak in appellant's line might have been caused by temperature changes, pipe fatigue, heavy traffic, or Acts of God, or vis Major, therefore being merely an accident which could not have been foreseen by appellant and for which appellant could not be charged with any negligence.
Appellant cites as authority for this contention the case of Wabash, St. L. & P. R. Co., v. Locke, 1887, 112 Ind. 404, 14 N.E. 391, in which an accident has been described as----
Also, from that same case----
'Where an event takes place, the real cause of which can not be traced, or is at least not apparent, it ordinarily belongs to that class...
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