32 Ind. App. 203 | Ind. Ct. App. | 1904
Appellees recovered a judgment for the burning of certain property, caused by appellant’s alleged negligence. The sufficiency of the complaint, which is in three paragraphs, is first questioned.
The first paragraph avers that appellant was engaged in supplying citizens with natural gas for domestic and manufacturing purposes; that appellees were patrons'of appellant, and were using gas, under a contract, in a stove in their factory; that the natural pressure of the gas is so great that it is necessary at all times to maintain regulators, which regulators were maintained by appellant, to control the flow of gas, and make the use of the same safe for consumers, and that it is necessary that the pipelines and regulators should be under the control and management of a skilled person, to oversee and control the same, that gas might be furnished to consumers at a low, safe, and uniform pressure; that on a certain date such regulators did not properly control the pressure and flow of gas so as to furnish appellees’ stove with gas at a safe, low, even, and uniform pressure; that appellant carelessly and negligently failed to regulate and maintain such reg
The action is in tort, and not for damages for breach of a contract. It is true, the complaint alleges that appellees were receiving gas under a contract, but the cause of action is based upon negligence. Indianapolis, etc., Gas Co. v. Anthony, 26 Ind. App. 307; Coy v. Indianapolis Gas Co., 146 Ind. 655, 36 L. R. A. 535. Each paragraph of the complaint shows that appellant was furnishing natural gas to appellees; that it negligently failed to regulate the flow of gas into the pipes leading to appellees’ stove, by reason of which the pressure and quantity of gas were increased beyond that theretofore supplied, to such an extent that the stove was overheated, setting fire to the property, without appellees’ fault. Under the authorities the complaint states a cause of action. Alexandria Mining, etc., Co. v. Painter, 1 Ind. App. 587; Indiana, etc., Gas Co. v. New Hampshire Ins. Co., 23 Ind. App. 298; Ibach v. Huntington Light, etc., Co., 23 Ind. App. 281.
Appellant’s answer was in three paragraphs, the first of which was the general denial. As the material facts pleaded in the second dnd third paragraphs of answer
Appellant’s counsel have discussed, at some length) the evidence upon the questions of negligence and contributory negligence. No good purpose would be subserved by a discussion of the evidence at this time. It is sufficient to say that an examination of the record discloses evidence to authorize the jury’s conclusion upon both these questions.
An objection to evidence that it is not competent nor material presents no question for review. Mortgage Trust Co. v. Moore, 150 Ind. 465; Western Assur. Co. v. McAlpin, 23 Ind. App. 220, 77 Am. St. 423.
Many objections to the admission of evidence are argued in appellant’s brief where no reference is made to the bill of exceptions by which the evidence and the ruling questioned may be found. It has long been the rule that the court will not search the record for such evidence and rulings. Ewbank’s Manual, §180; McCaslin v. Advance Mfg. Co., 155 Ind. 298; Rule 22, subdivision 5.
Appellant’s counsel have not shown that the error, if any, was harmful, in permitting the introduction in evidence of a certified copy of a certain deed to the land on which the buildings burned were situated. Its'introduction in evidence would in no way harm appellant.
Appellee Whipple was recalled as a witness by appellant, and ashed whether after the fire h'e did not circulate a paper among the citizens and get from five to six hundred dollars in cash and material for the purpose of reim
At the request of appellees the court gave, among others, the following instructions: “(1) I instruct you that a corporation or person furnishing natural gas to the stoves, heaters, burners, pipes, pipe-lines, machinery, or apparatus of another, to be used for the purpose of domestic heating, for fuel in a dwelling-house, storeroom, office, or shop, is bound to exercise such care, skill, and diligence in all its operations as is called for by the delicacy, difficulty, and dangorousness of the nature of its business, in order that injury may not be done to others; that is to say, if the danger, delicacy, or difficulty is extraordinarily great, extraordinary skill and diligence is required. (2) I instruct you that, by the law governing this case, it was the duty of the defendant, as it is of all corporate companies which are invested for their own private advantage with the great and important privilege of supplying a community with natural gas for private habitation heating, to exercise such care, diligence, and skill in the conduct of its
It may be that the connection of appellees’ stove with the service-pipe was not made with the consent or permission of appellant had at the time; but there is evidence that appellant recognized the connection as made, and received pay for gas furnished. Appellant might waive the obtaining of its written permission to make the connection, and there is evidence from which it may be said it did so. The court properly instructed the jury in the twelfth instruction that if appellees connected their stove with appellant’s pipes, and used gas without the knowledge or consent of appellant, and afterwards appellees paid appellant, at appellant’s request, the amount demanded for such gas, by such payment and acceptance appellees became consumers of appellant from such time, and after such payment and acceptance appellees would have a right to use gas, unless ordered to cease by appellant.
There is evidence that appellant was supplying gas at a ten-pound pressure, and that a pressure of above eight ounces was dangerous, and that, while there were regulators to control the pressure, yet the regulators did not control the pressure until it reached ten pounds. The seventh. instruction does not necessarily proceed on the theory that the regulators were out of repair. They may have been in proper repair, but were so adjusted as to per
The use of the word “plaintiff” in an instruction, where there are two plaintiffs to the action, is not necessarily misleading. A jury of average intelligence would certainly understand that the court meant the parties who had brought the action.
The court correctly told the jury that it was not, as a matter of law, negligent for appellees or their agent to have the gas burning in their stove during the night-time, if they used proper care and caution in turning down and adjusting the key valve, and looking after the service-pipes and appliances so as properly to regulate the gas while the same was furnished at a safe pressure. In the same instruction the jury wore further told that they were to consider all the evidence, facts, and circumstances which tended to show the condition as it existed at the time of the fire, and from all such facts and circumstances they were to determine whether appellees were guilty of negligence. This instruction, with others given, left the question of appellees’ negligence at the time of and before the fire with the jury.
The court, on its own motion, gave, among others, the following instructions: “(0) I instruct you that the credibility of a witness is a question exculsively for the jury. You have the right to determine from the appearance of the witness on the stand, his manner of testifying, and his apparent candor and fairness, bias, interest, or lack of interest in the case, if any should appear, his bias or prejudice, if any should appear, and from all other surrounding circumstances, if any appear on the trial, which witnessess are more worthy of credit, and to give credit accordingly. (10) I further instruct you that you are the judges of the credibility of the witnesses, and of the weight to be adjudged to the testimony of each and all of them. You are
The eleventh and twelfth instructions given by the court on its own motion were to the same effect as the above. These instructions are no more than general statements of the law concerning the credibility of witnesses and the weight of testimony. Eo attempt was made in any of them to apply the principles announced to any witness or witnesses who had testified. They apply to appellees’ witnesses as well as appellant’s. They were equally favorable to both parties. It is not made to appear that they were prejudicial to appellant.
The instructions given to the jury are very lengthy, and may contain some repetitions. Considering them as a whole, we find nothing in them authorizing a reversal of the case. From a careful consideration of the whole record, we can but conclude that the case was fairly tried, and a correct conclusion reached. We find no error in the record sufficient to reverse the case, . .
Judgment affirmed.