Zeppenfeld v. Franklin Motor Serv. Co.

• Decision Date: 10 March 1922
• Docket Number: No. 11172.,11172.
• Parties: ZEPPENFELD et al. v. FRANKLIN MOTOR SERVICE CO.
• Court: Indiana Appellate Court

77 Ind.App. 687

134 N.E. 487

ZEPPENFELD et al.

v.FRANKLIN MOTOR SERVICE CO.

No. 11172.

Appellate Court of Indiana, Division No. 2.

March 10, 1922.

Appeal from Circuit Court, Johnson County; Fremont Miller, Judge.

Action by Loui Zeppenfeld and others against the Franklin Motor Service Company. Judgment for defendant when plaintiffs refused to plead further after demurrer to their complaint was sustained, and plaintiffs appeal. Reversed, with instruction to overrule the demurrer to each paragraph of the complaint.

R. M. Miller, H. C. Barnett, and O. S. Barnett, all of Franklin, for appellants.

White & Owens, of Franklin, and Matson, Kane & Ross, Robert D. McCord, and Adolph Schreiber, all of Indianapolis, for appellee.

NICHOLS, J.

Complaint by appellants in three paragraphs to enjoin the use by appellee of either or both of two metal tanks, each of 16,000 gallons capacity, near appellants' residences, by placing gasoline and other dangerous liquids therein.

The first paragraph avers: That appellee is the owner and in possession of certain real estate in the city of Franklin, Johnson county, Ind., bounded on the south by Jefferson street, on the west by Walnut street, on the north by an alley, and on the east by the F. F. & M. Railway, and is located at the edge of the business district of said city and at the beginning of the good residential section thereof. That appellants are severally the owners of their respective residences and dwelling houses in the immediate neighborhood, said buildings ranging in value from $5,000 to $10,000, each of which will be injuriously affected by the location and use of the tanks as hereinafter set forth. That appellee has located upon its said real estate two immense metal tanks, of the capacity of 16,000 gallons each, and together of the total capacity of 32,000 gallons, and is threatening to and will fill them with gasoline or other high explosive substances unless restrained. That the use of said tanks for the purpose of storing gasoline or other high explosives, because of their highly explosive character, will be a menace to appellants' respective selves and families, greatly lessen the value of their said dwelling houses, and will cause them to live in constant fear and apprehension of death from explosion, so interfering with the comfortable enjoyment of their respective lives or properties, thereby causing them an irreparable injury.

The second paragraph contains the same averments as the first, but more definitely describes the situation as follows: Said tanks are located within 70 feet of the main line of the Big Four Railway, and immediately east of said main line and but a few feet therefrom is located the switch of said railway upon which the said railroad will place its tank car while transferring gasoline or other liquids to said tanks. That said car while so transferring its contents to said tanks would stand within 80 feet of a good frame dwelling house with a shingle roof, such house being within. 80 feet of tanks. Said tanks are located within 48 feet of the improved portion of Walnut street, an improved thoroughfare, within 300 feet of the plant of the Graham Manufacturing Company's building, a large building wherein, among other things, are stored, from time to time, more than 1,000,000 feet of lumber, within 150 feet of an electric plant and power house, which has electric wires running from it carrying a voltage of 33,000, and which wires are carried immediately over where gasoline is being taken, or will be taken from said tank cars of said railroad, and they are within 250 feet of an artificial gas holder of large capacity. That a brick dwelling house of appellant Johnson is within 70 feet of said tanks, and a frame dwelling house of said Johnson is within 90 feet thereof, and another frame dwelling of said Johnson is within 100 feet thereof, and the brick stucco house of appellant Mason is within 80 feet thereof, the brick dwelling of appellant Zeppenfeld is within 100 feet, the frame dwelling of appellant Miller is within 200 feet, the frame dwelling of appellant Sullivan is within 300 feet, and the frame dwelling houses of appellant La Grange are within 300 feet thereof. That east of said tanks, and within about 25 feet, is a large open ditch about 10 feet deep and about 20 feet in width at the top wherein gasoline vapors are liable to accumulate in dangerous quantities, which ditch enters a stone culvert under said Jefferson street, the south end of which is about 50 feet from said electric plant and 75 feet of said artificial gas holder. That said tanks are not buried 3 feet under ground, as required by the rules of the state fire marshal's office of the state of Indiana, but the tops of said tanks are 2 feet above the top of the surrounding ground, and are within 10 feet of the brick wall of a building on the south and 2 feet of the brick wall of a building on the west, in violation of said rules. That under the end of one of said tanks, and in close proximity thereto, are two storm sewers, side by side, at least 24 inches in diameter, constructed of cement tile, without the joints being in any way sealed, or in any other manner preventing gasoline or other liquids from entering the said sewers. That said two sewers reach northwardly to Madison street, where they are joined at the southwest intersection of Madison and Walnut streets, within 40 feet of the residence of appellant Miller, and within 160 feet of the residence of appellant Sullivan. That at said last-named point said two sewers are joined to a stone culvert reaching across said Madison street, and that the northern end of said culvert is joined with one of said tiles of like dimensions, so loosely laid, which continues in a westerly direction passing under frame residences within 70 or 75 feet of the residences of said Sullivan and Miller. That two pipes, firmly attached to said tanks, reach from said tanks to a point near said railroad switch, for the purpose of transferring gasoline, or other liquids from the said railroad to said tanks. That said pipes reach across said open ditch at such a height as the water in said ditch, known as “Roaring run,” will reach the same, and that during the high water in said run, which frequently occurs, said water and débris which it is liable to carry will break open said pipes, so that such liquids will escape therefrom, and is liable to wrench said tanks and their connections therewith, thus affording an escape for said liquids. That from the fact that the earth on the north of said tanks is nonabsorbent clay, and that on the south of said tanks is a brick foundation and wall reaching down far into the ground, which foundation and wall is within a few feet of said tanks, and that within 25 feet of the east end of said tanks is a large open ditch, there is not a sufficient opportunity or capacity for the absorption of gasoline should the same escape from said tanks. That gasoline is an exceedingly volatile, inflammable, and explosive liquid, as is its vapors, and very dangerous. That, should the gasoline, either by leakage, effects of lightning, or by violence of any kind, be released from said tank, or become exposed, or the vapors thereof, either in the air, ground, said ditch, or said sewer, the same is liable to become ignited and destroy by fire or concussion or from flying débris of nearer buildings, said appellants' properties. That, should gasoline or the vapors thereof enter the said sewer, the same would be liable to flow under the buildings located over the same, and, should the same become ignited, the concussion therefrom and the débris of said buildings would be liable to injure appellants' properties. That all said damages and dangers to said property are likewise dangerous to the lives and...