Wiley v. St. Joseph Gas Company
| Decision Date | 29 June 1908 |
| Citation | 111 S.W. 1185,132 Mo.App. 380 |
| Parties | JOSEPH WILEY, Respondent, v. ST. JOSEPH GAS COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.
AFFIRMED.
Judgment affirmed.
Vinton Pike for appellant.
(1) While making the joints with Wiley's assistance, he was not performing a duty the master owed any servant, he and Wiley were on equal footing accomplishing by a joint act the common object of their employment. Both were connecting pipe from which gas was escaping, and each knew what they were about. Stephens v. Lumber Co., 110 Mo.App. 405. (2) So if the escape of the gas in large quantity was caused by Wiley's failure to promptly present his section of the pipe to be attached after Chapman had removed the cap or plug, and some other servant was injured by the explosion neither Wiley nor the servant could recover. Chapman's act must be judged by the same rule. Anglin v. Am. Const. & T. Co., 96 N.Y.S. 49, affirmed by Court of Appeals, 79 N.E. 1100; Guilmartin v. Solvay Process Co., 101 N.Y.S. 118; Loughlin v. Brassil, 79 N.E. 854; McConnell v. Dock Co., 187 N.Y. 341, 80 N.E. 190; Connolly v. Const. Co., 102 N.Y.S. 599; Pitts v Center, 98 S.W. 300. (3) The defendant had provided means to prevent the flow of gas. It could do no more, unless it stood over the servants and made them use the means--in other words, did for them the work they were hired to do. Loughlin v. Brassil, 79 N. 7. 854; Guilmartin v Solvay Process Co., 101 N.Y.S. 118. (4) Chapman could act in the dual capacity of foreman and fellow laborer. He had sued for injury to himself, and had been nonsuited. It was his interest in his own case to show that he was merely a laborer like all the others at work on the same job. On this trial he had to maintain some consistency. His position was like that of Whalen in the case next cited. Hawk v. Lumber Co., 166 Mo. 128. (5) Chapman's duty in connecting pipes was not personal to the master. It was not the master's duty to turn off the gas by means of the stopcock, but to provide the means. The cause of the accident was not a failure to provide means, but the failure of the servants to use the means provided. McConnell v. Dock Co., 80 N.E. 190; 187 N.Y. 341; Connolly v. Const. Co., 102 N.Y.S. 599; Lee v. Gas Co., 91 Mo.App. 612; Anderson v. Box Co., 103 Mo.App. 387.
J. B. O'Connor and James W. Boyd for respondent.
(1) Enright was appellant's general superintendent, Chapman was assistant superintendent and foreman; and both ordered the stopcock, open, to be covered up with earth, so that it could not be used to check or stop the outflow of the gas. (2) Appellant's contention is that Chapman was not a foreman. The evidence conclusively shows that he was. He ordered the men where to work, how to work, what to do, discharged them; and, indeed, was assistant superintendent. Hollwig v. Telephone Co., 195 Mo. 156; Fogarty v. Transfer Co., 180 Mo. 504; Bane v. Irwin, 172 Mo. 316; Donnelly v. Milling Co., 103 Mo.App. 349. (3) That natural gas is highly explosive and exceedingly dangerous, is a fact known to us all. Sipplle v. Gas Light Co., 125 Mo.App. 34.
The plaintiff seeks to recover damages for injuries received as the result of the alleged negligence of the defendant. The defendant is a corporation which supplies illuminating and fuel gas to the inhabitants of the city of St. Joseph, Missouri. On the 17th day of October, 1906, plaintiff was in the employ of defendant as a common laborer, and engaged with other employees of defendant in putting in gaspipes to form a connection between the gas main of defendant and a residence located at number 1305 Felix street. Connection was begun at the gas main in the street, and carried forward by sections towards the residence. In the progress of the work it became necessary to dig a trench across the sidewalk space. In this space a stopcock had been placed in the pipe being laid to prevent the escape of gas from the pipe, but it was shown that this stopcock was left open and the trench filled up, and that the extension was continued by laying of sections until the building was reached and it was while plaintiff and a Mr. Chapman were at work on the inside of the building that an explosion occurred which caused plaintiff's injury. Chapman was under the floor of the house working at the pipes while plaintiff was on the floor above assisting him. It was shown that instead of using the stopcock to shut off the gas Chapman inserted a plug in the end of the pipe, or a cap on the end to prevent the gas from escaping, but in making connections they would have to be removed during which time more or less gas would escape. The negligence if any was the filling up the ditch and covering up the stopcock without first having attached a stopbox to it reaching to the surface of the ground by means of which the stopcock could be utilized to turn on or off the gas flowing through the pipe. It was not shown what caused the gas to explode, but it was explained that it could have ignited only by the application of a light--by fire.
A Mr. Enright was the superintendent of the defendant and Chapman was its foreman and had supervision of the work in question in the absence of Enright. Mr. Enright testified that it was the usual custom in all such cases to attach a stopbox to the stopcock before a trench was filled in, so that the workman could at all times control the flow of gas and prevent it from escaping, but he did not remember giving an order to that effect in the instance under consideration.
The contention of defendant is that as defendant had provided the means to prevent the flow of gas, it could do no more unless it stood over the servants and made them use the means. Had the means been provided the contention of defendant would be tenable, but the stopcock provided for the purpose did not prove efficient for the reason that it could not be used without a stopbox properly equipped. If it was a mere matter in the detail of the work to put on the stopbox then perhaps defendant would not be liable, without the work was done under the supervision of some one in authority under the defendant. The work was done however under the direction of Chapman who caused the trench to be filled in and the stopcock covered up so it could not be used. Chapman was engaged in the work, knew that the gas would escape when the plug was removed from the open end. As foreman his knowledge was that of the defendant. It is true that Chapman was acting in the dual capacity of foreman and workman,...
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