147 Ky. 754 | Ky. Ct. App. | 1912
Affirming.
Prior to January 21, 1908, Eliza Fry lived ,on Fifteenth street, near Gallagher, in Louisville, Kentucky. She was engaged in the dry goods and notions business in a small way and used the front part of her house as a store-room. Back of this store-room was her sleeping room, kitchen, etc.' The service pipe of the Gas Company runs into the building and gas was used by the occupant for lighting purposes. On the night of January 21st an explosion occurred in the front room which damaged and set fire to the building, necessitating her leaving it in haste and scantily clad.
Sometime thereafter she instituted a suit against the Louisville Gas Company in which she sought to recover damages for injuries resulting to her by reason of her-exposure on the night of the explosion. She alleged in her petition that, as a result of her being compelled to flee from her house following the explosion, clad only in her night clothing, she contracted a cold, became quite sick, and was seriously injured in her health because thereof.
The company denied liability and pleaded that the plaintiff was guilty of contributory negligence. Upon this issue the ease went to trial, and at the conclusion qf the evidence the court directed the jury to find a verdict for the defendant.
Thereafter, upon consideration, a new trial was granted, and in due time the case again went to trial, with the result that the plaintiff recovered a verdict for $1,500. The defendant appeals.
It is insisted first that, in peremptorily instructing the jury to find for the defendant upon the first trial, the court ruled correctly, and erred in granting a new trial; and second, that upon the last trial defendant was entitled to a peremptory instruction and the court erred in refusing to give it. Other minor errors are complained of, but counsel in brief rely chiefly upon these two points for reversal.
A determination of the correctness of the contention that appellee failed to make out a case necessitates a consideration at some length of the evidence introduced on her behalf. She testified that she moved into this building in August, 1907. The explosion occurred in January, 1908. Gas was supplied to her by the appellant company. Shortly after she moved into the house she
Undoubtedly, considering this testimony alone, the,, defendant was guilty of negligence in failing to repair its service pipe when it knew that it was defective and leaking; and unless, by remaining in the house and continuing to heat same with fires after she knew that these pipes were leaking, appellee was herself guilty of such negligence as would prevent a recovery on her part, the action of the court in overruling a motion for a peremptory instruction must be upheld.
Gas is highly inflammable, and when exposed in quantity to flame or fire is liable to explode. This is true not only when it is in its pure state, but when mixed with air. But it does not appear that these, qualities of it were known to appellee. She had been .raised in the country and had not be.en accustomed to its use. It had' been escaping in her house for several months. For' some time she did not know what it was, and after she did learn that it was the gas that was escaping, she continued to use the house, not realizing that she was endangering her life by so doing. But it is not in every instance where one exposes himself to a known danger., and injury results that he is denied a right to recover, but only in that class of cases where the danger is so. obvious and imminent that a person of ordinary pru-. dence under like circumstances would not subject himself-to it. Applying that test to the facts in the case before, us, we would not be willing to hold, as a matter of law,, that appellee could not recover, even though, appellant, was guilty of negligence in permitting its service pipe’ to remain out of condition for the length of time here' shown. And in our opinion ..the trial judge should have refused the motion for a peremptory instruction. Having entertained it upon the first trial, he did not err in granting a new trial; and as the evidence was practically'the same upon the second trial as upon the first, the motion, of course, should not have prevailed.
Judgment affirmed.