195 S.W.2d 504 | Mo. | 1946
Lead Opinion
The basement of the Grand Avenue Temple Building in Kansas City extends out underneath the Grand Avenue sidewalk. On the 17th day of November, 1939 there was a violent explosion in the basement of the building. Margaret Hardwick, the plaintiff's wife, was standing in front of the building, waiting for *104 him, when the explosion blew up the sidewalk, causing her death. In this the second trial and appeal the husband recovered a judgment of $10,000.00 against the appellant Kansas City Gas Company.
The plaintiff claimed that the explosion and his wife's death were due to the concurrent negligence of the gas company and the owner of the building. But upon the first trial the jury found for the defendant Metropolitan Life Insurance Company, the owner of the building, and against the defendant Kansas City Gas Company. The plaintiff, Hardwick, did not appeal from the judgment in favor of the owner of the building. The gas company did appeal and the judgment was reversed and remanded because, as against the appellant gas company, the time for taking certain depositions in Texas had been improperly shortened. Hardwick v. Kansas City Gas Company,
The plaintiff's theory is that the effect of our judgment is not to be determined by the issues considered upon the appeal nor by what parties appealed but solely from the force of the fact of its being a general judgment remanding the cause for a new trial. It is insisted that [506] the effect of the general judgment, without specific restriction as to the issues to be retried, was to remand the cause for all purposes and as to all parties. There can be no question as to the validity of the plaintiff's argument in general. An appellate court may reverse and remand a cause specifically limiting the issues to be retried, certainly so when there is an appeal by all the parties or by all the parties on one side. Yerger v. Smith,
[2] The evidence as to the source and cause of the explosion was circumstantial. The center or greater force of the explosion was in the vicinity of the gas meter on the west wall, and just above a manhole over the west end of a tunnel beneath the floor of the building. The explosion did not materially injure the west wall but it did wreck certain partition walls in the basement and, as we have said, blew up a large section of the sidewalk. After the explosion it was discovered that the gas company's four inch main in Grand Avenue was broken. The gas company sought to persuade the jury, with its evidence, that the explosion was due to conditions within the building, conditions over which the owner of the building and not the gas company had control, as it successfully did in another tragedy arising out of the same explosion. McMurray v. Kansas City Gas Co.,
But, the gas company's four inch main was cast iron and had been in use for thirty-five years. It was laid in a trench about two and one-half feet below the surface of the street, backfilled with clay dirt which contained some rocks. Over the trench there was concrete paving nine to [507] sixteen inches in depth and a three inch covering of asphalt. *106 The main was about six feet from the curb line of the building. It was broken thirty-five feet south of the point the service pipes entered the basement or about forty-two feet from the center of the explosion. Shortly after the explosion there was an odor of natural gas at the opening in the sidewalk at the street level. Soil removed from around the broken main had a bluish or grayish cast as if discolored by gas escaping over a long period of time.
In view of all these circumstances the plaintiff used expert witnesses who gave it as their opinions that the explosion was a natural gas explosion. They testified, in their opinions, that the four inch main was improperly laid, both as to depth and the nature of the back-filling of clay and rocks, especially in view of the vibrations from the heavy vehicular traffic on Grand Avenue. They gave it as their view that the main had been broken a long time, not by the explosion, and that gas had escaped from the broken main, followed the path of least resistance down the trench of clay and rock to a pocket near the west wall and on into the tunnel.
The detailed facts are most accurately set forth in Stephens v. Kansas City Gas Company,
It is again urged, however, that it was error to admit the testimony of the plaintiff's experts because they were not qualified, stated mere conclusions based upon conjecture and speculation rather than opinions based on facts and invaded the province of the jury by deciding ultimate questions rather than leaving them to the jury to find or infer as facts. A comparison of the records in this and the Stephens case reveals that except for one witness, Leonard, and except for the fact that some of these witnesses testified for the owner of the building in the Stephens case, rather than for the plaintiff, the witnesses are the same and the force and purport of their evidence almost identical in both cases. In each instance, in this case, the trial court carefully insisted upon proof of the witness' experience and qualifications before he was permitted to express his opinion upon the various problems posed by the circumstances and there was no abuse of the court's discretion in this respect. Arnold v. Alton Railroad Co.,
[3] It is insisted by the gas company, assuming the admissibility of and considering the opinion evidence together with all the facts and circumstances, that there was nevertheless insufficient evidence upon which to predicate liability and hence it was error to give the principal instruction offered by the plaintiff and to refuse the appellant's motion for a directed verdict. It is said, since there were two sources from which the gas could have come, that the circumstantial evidence was insufficient to prove with any degree of certainty that it came from the four inch main or that the company's negligence contributed in any manner to its escape and the explosion. It is urged that the circumstantial evidence here does not have the slightest tendency to exclude all other reasonable conclusions than the principal one that gas escaped from the main or that the company was negligent with respect to the main, the escaping gas and the explosion. Fritz v. St. L.I.M. S. Ry. Co.,
On this subject but little can be added to what was said in the Stephens case. It is true that much of the evidence is circumstantial and that some of the inferences must be drawn by choosing between the conflicting opinions of experts. But this is not to deprive the jury of its right and function to find some of the facts, even some facts essential to the plaintiff's case, by reasoning upon the evidence, even circumstantial evidence, and inferring from such evidence that a certain required thing or fact existed or was true. Thayer, Preliminary Treatise On Evidence, pp. 193-194; Van Brock v. First Nat. Bank,
[4] Mr. A.N. Adams, Jr., a prominent lawyer, was called from home immediately after the explosion. He represented a client, one not interested in this suit, who was or might become interested in matters arising out of the explosion. He testified that he observed certain test holes the gas company had drilled along its main and certain excavations it had made. Over the company's objection he was permitted to testify that as he stood in a second story window of the building, looking down upon the work, he saw two men take something out of the trench and run across the street with it to the company's office. The impression he conveyed was that it was a piece of the four inch gas main. He said that he went to the building across the street and requested permission to see what had been taken out and was referred to the company's claims attorney, Mr. Taylor, who was there. Mr. Taylor denied him permission to see and examine whatever had been removed, although Mr. Adams told him who he was and why he was there. He further indicated that company employees had so conducted themselves and refilled certain of the excavations that he was unable to observe the character of the dirt removed from the trench. The gas company urges, without citation of authority, that this evidence was improperly and prejudicially admitted. But, even though Mr. Adams may have been mistaken as to what the company's employees actually removed from the trench (Mr. Taylor did not testify) yet, if they in fact concealed some piece of evidence the jury could properly draw an unfavorable inference from the fact of concealment. Derrington v. Southern Railway Co.,
[5] After the gas company had concluded its testimony it claimed the right and offered to read from the plaintiff's petition, upon which the cause was twice tried, the allegations with reference to the Metropolitan Life Insurance Company, including the charges of joint and concurrent negligence. The gas company, relying upon the cases which hold that "parties are absolutely concluded by the statements contained in their pleadings" (Davis v. Bond,
[6] Finally, the gas company assigns error upon the refusal of its instruction N. The instruction defined "speculation" and "conjecture" and told the jury that they could not find a verdict for the plaintiff upon mere surmise or guesswork. The giving or refusal of this cautionary instruction was a matter within the trial court's discretion. Gardner v. Turk,
There being no prejudicial error in the trial of this cause the plaintiff's appeal as to the Metropolitan Life Insurance Company is dismissed and the judgment against the Kansas City Gas Company is affirmed. Westhues and Bohling, CC., concurs.
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.
