Graham v. North Carolina Butane Gas Co.

231 N.C. 680 | N.C. | 1950

Ervin, J.

On the trial of an action, the competency, admissibility, and sufficiency of the evidence are for the court while the credibility of the witnesses, and the probative force and weight of the testimony are for the jury. Coach Co. v. Lee, 218 N.C. 320, 11 S.E. 2d 341.

A motion for a compulsory nonsuit under the statute now codified as G.S. 1-183 challenges the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. Ballard v. Ballard, 230 N.C. 629, 55 S.E. 2d 316; Lea v. Bridgeman, 228 N.C. 565, 46 S.E. 2d 555; Ward v. Smith, 223 N.C. 141, 25 S.E. 2d 463. When the defendant moves for a compulsory nonsuit, he admits, for the purpose of the motion, the truth of all facts in evidence tending to sustain the plaintiff’s claim; and the plaintiff is entitled to have the court, in ruling on the motion, to give him the benefit of every favorable inference which the testimony fairly supports. Higdon v. Jaffa, ante, 242, 56 S.E. 2d 661; Hughes v. Thayer, 229 N.C. 773, 51 S.E. 2d 488; Reid v. Coach Co., 215 N.C. 469, 2 S.E. 2d 578, 123 A.L.R. 140. A motion for a compulsory nonsuit cannot rightly be allowed unless it appears, as a matter of law, that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish. 53 Am. Jur., Trial, section 299. This being true, the court cannot properly enter a compulsory nonsuit and thereby withdraw the case from the jury if the facts are in dispute, or if the testimony in relation to the facts is such that different conclusions may reasonably be reached thereon. Cox v. Hinshaw, 226 N.C. 700, 40 S.E. 2d 358; Phillips v. Nessmith, 226 N.C. 173, 37 S.E. 2d 178; Newbern v. Leary, 215 N.C. 134, 1 S.E. 2d 384; Lithograph Corporation v. Clark, 214 N.C. 400, 199 S.E. 398.

The plaintiffs seek to hold the defendant liable under the doctrine of ■respondeat superior for injury to their property allegedly caused by the negligence of Lee, the driver of the tank truck. In consequence, the appeals from the compulsory nonsuits raise the question whether the evidence introduced by plaintiffs at the trial is sufficient to establish ■these three propositions: (1) That Lee was negligent; (2) that the negligence of Lee was tbe proximate cause of injury to tbe property of tbe plaintiffs; and (3) tbat tbe relation of master and servant existed between tbe defendant and Lee at tbe time of tbe injury, and in respect to tbe very transaction out of wbicb tbe injury arose. Carter v. Motor Lines, 227 N.C. 193, 41 S.E. 2d 586; Walker v. Manson, 222 N.C. 527, 23 S. E. 2d. 839.

Tbe defendant maintains tbat tbe testimony negatives liability on alternative grounds. Tbe defendant asserts initially tbat tbe plaintiffs owned, maintained, and controlled tbe gas range, and by reason thereof were responsible for its condition; tbat tbe fire and tbe resultant injury were caused by a leak in tbe gas range occasioned by tbe neglect of tbe plaintiffs to keep tbe range in repair, or by tbe failure of James Neal Graham to turn off tbe master burner; and tbat in consequence tbe testimony actually disproves tbe allegation of tbe plaintiffs tbat tbe destruction of tbeir property was tbe result of tbe negligence of Lee. It is noted, in passing, tbat tbe suggestion tbat James Neal Grabam failed to turn off tbe master burner runs counter to bis positive testimony tbat “all tbe burners were off,” wbicb must be taken to be true in determining tbe propriety of tbe compulsory nonsuits. Tbe defendant insists secondarily, however, tbat tbe evidence fails to make out a case for plaintiffs under tbe doctrine of respondeat superior, even if it be adequate to sustain a finding tbat tbe loss of tbe property was tbe proximate result of negligence on tbe part of Lee. This position is predicated on tbe theory tbat tbe testimony compels tbe single conclusion tbat Lee was employed by tbe defendant merely to deliver gas into the storage tank of tbe plaintiffs; tbat Lee stepped aside from tbat business to engage in an unauthorized act, i.e., to repair tbe gas range of tbe plaintiffs; tbat any negligent conduct on Lee’s part occurred in tbe performance of such unauthorized act; and tbat in consequence tbe relation of master and servant did not exist between tbe defendant and Lee in respect to tbe transaction out of wbicb tbe injury arose, i.e., tbe repair of tbe gas range.

Tbe trial court deemed these views to be valid, and dismissed tbe actions on compulsory nonsuits. In so doing, it committed error, notwithstanding tbat tbe plaintiffs owned and maintained tbe gas range, and tbat Lee was authorized by tbe defendant merely to make delivery of its gas.

It is a scientific fact “tbat gas ordinarily used for fuel is so inflammable tbat tbe moment a flame is applied it will immediately ignite with an instant explosion, if it is present in any considerable volume.” Holmberg v. Jacobs, 77 Or. 246, 150 P. 284, Ann. Cas. 1917 D, 496. This being true, such gas is a dangerous substance when it is not under control. For this reason, tbe law, wbicb is ever heedful of realities when it formulates rules to govern tbe conduct of men, has established these principles in respect to the liability of gas companies for injuries resulting from escaping gas:

1. A company, wbicb deals in gas as an article of merchandise, must use reasonable care to avoid injury to others by its escape. Reasonable care is that degree of care wbicb an ordinarily prudent person would exercise under like circumstances in managing such a dangerous agency. Barbeau v. Buzzards Bay Gas Co., 308 Mass. 245, 31 N.E. 2d 522; Moran Junior College v. Standard Oil Co. of California, 184 Wash. 543, 52 P. 2d 342; Barrickman v. Marion Oil Co., 45 W. Va. 634, 32 S.E. 327, 44 L.R.A. 92; 42 Am. Jur., Gas Companies, section 24. A gas company is answerable in damages under the principles governing liability for negligence if it fails to employ reasonable care to prevent the escape of gas, and if its failure in such respect is the proximate cause of injury to the person or property of another. 24 Am. Jur., Gas Companies, sections 20, 21, 22; 38 C.J.S., Gas, sections 40, 41, 43.

2. The general rule requiring a gas company to use reasonable care to' prevent the escape of gas applies to its delivery of gas into the building-of a customer. Manning v. St. Paul Gaslight Co., 192 Minn. 55, 151 N.W. 423, L.R.A. 1915, 1022, Ann. Cas. 1916E, 276; 38 C.J.S., Gas, section 42.

3. Where a gas company does not install the gas fixtures in a customer’s building and does not own them and has no control over them, it is in no way responsible for their condition or for their maintenance.- Consequently, it has the right to act upon the assumption in the absence of notice to the contrary that such fixtures are sufficiently secure to permit gas to be introduced into the building with safety, and is not liable for an injury caused by a leak therein, of which it has no knowledge. Triplett v. Alabama Power Co., 213 Ala. 190, 104 So. 248; Milligan v. Georgia Power Co., 68 Ga. App. 269, 22 S.E. 2d 662. See, also, these annotations: 138 A.L.R. 871; 90 A.L.R. 1082; 47 A.L.R. 488; 29 A.L.R. 1250; and 25 A.L.R. 262.

4. Where a gas company, which is engaged in supplying gas to a customer’s building, becomes aware that such gas is escaping from the gas fixtures on the premises into the building, it becomes the duty of the gas company to shut off the gas supply until the further escape of gas-from the fixtures can be prevented, even though the fixtures do not belong to the company and are not in its charge or custody. If the gas' company continues to transfer gas to the fixtures on- the premises after it learns' that the gas is escaping therefrom, it does so at its own-risk, and becomes liable for any injury proximately resulting from its act in so doing. Clare v. Bond County Gas Co., 356 Ill. 241, 190 N.E. 278.

This fourth proposition finds emphatic expression in Windish v. People’s Natural Gas Co., 248 Pa. 236, 93 A. 1003, and Phillips v. City of Alexandria, 11 La. App. 228, 123 So. 510. In the Windish Case, the Supreme Court of Pennsylvania said: “We fully agree with the suggestion that the defendant company, even if the duty to repair the service line did not devolve upon it, could not continue to furnish gas through that service line if known to be defective without making itself liable in damages for injuries resulting therefrom”; and in the Phillips Case, the Court of Appeal of Louisiana declared: “Natural gas is air explosive and a highly dangerous substance, so that the city in handling it must be held to a degree of care commensurate with the danger. In view of that fact, if the employees of the city knew at the time the gas was turned into the service pipe at the curb that there was an uncapped gas opening in the house through which gas would escape, or if they became aware after it was turned on that gas was escaping into the house through such opening, and made no effort to stop the flow and protect the occupants of the house, the city, we think, would be liable, even though it did not install the plumbing or the fixtures in the house, and did not at any time connect with the piping or disconnect therefrom any plumbing fixtures.”

When the evidence is taken to be true and is interpreted favorably to plaintiffs in the light of these legal principles, it is adequate to support these conclusions :

When the defendant employed Lee to deliver the 50 gallons of gas, it necessarily delegated to him the performance of its duty to use reasonable care to prevent the escape- of such gas during the course of delivery. While Lee was transferring the gas from the tank truck of the defendant to the- storage tank- of the plaintiffs, he acquired knowledge that the gas was escaping through the gas- range of the plaintiffs, and was concentrating in heavy volume in the kitchen. Despite this knowledge, Lee did not shut off the gas supply until the further escape of the gas from the gas range could be prevented', but, on the contrary, continued to introduce the gas into the house- of. the' plaintiffs until the last of the 50 gallons had been transferred from the tank truck to the storage tank. He then entered-the kitchen, with a flame in his hand to light the pilot light, and thus prevent any further escape of the gas, which he was employed to deliver. The explosion, fire, and consequent destruction of the property of the plaintiffs ensued.

Hence, it appears, that the testimony is sufficient to warrant findings that Lee was negligent -in the performance of the very mission assigned to him by the defendant; i.e., the delivery of the gas; and that his negligence in this respect was the proximate cause of injury to the property of the plaintiffs. This being true, the compulsory nonsuits are

Reversed.

Stacy, C. J., took no part in.the consideration or decision of this case.