129 Minn. 55 | Minn. | 1915
While asleep in his home in St. Paul, Minnesota, on August 22, 1913, plaintiff’s intestate, Samuel J. Manning, was asphyxiated by illuminating gas which had escaped through a break in the service pipe through which defendant supplied it to the building. Mr. Manning was alone in the house on the night he met death. Immediately upon his body being discovered, defendant made an investigation and ascertained that the gas found entrance to the house from a large break in the service pipe at a joint, or coupling, located in the ground about five feet away from where it passed through the foundation of the building. The pipe was laid about 27 inches below the surface. The ground was peaty. It however had been in no manner disturbed during the time Mr. Manning had been the owner, some four years. Defendant under its franchise installs the service pipe and connects it with a meter in the building to be supplied with gas; however, the owner of the building pays the cost of installation from the lot line to the meter. The complaint set forth’: “That on or about August 22, 1913, the defendant wrongfully, unlawfully and negligently had permitted its pipes to become damaged, defective and leaky to such an extent 'that solely on account of such negligence, a large quantity of the defendant’s illuminating gas was permitted to escape and did escape” into the dwelling house of Mr. Manning causing his death. Plaintiff had a verdict, and defendant appeals -from the order denying its motion, in the alternative, for judgment notwithstanding the verdict, or a new trial.
Defendant is not entitled to judgment notwithstanding the verdict. There is no doubt the fatal accident was caused by defendant’s gas which escaped from the break in the service pipe. Illuminating gas is a highly dangerous and destructive product when allowed to escape or to get beyond control. Defendant is engaged in the manu
The trial court deemed the doctrine of res ipsa loquitur inapplicable, and we should ascertain whether defendant is entitled to a new trial because of errors or because of lack of evidence to support 1he verdict under the charge of the court. The errors assigned depend chiefly on the claim that the complaint was insufficient to admit proof of defects in the installation of the pipe where the break
Construing the complaint as we do, and holding that defendant is not absolved from the duty of care to prevent the escape of its gas, it follows that it was not error to refuse defendant’s requested instructions to the effect that there was no justification for finding liability on the ground of defective installation, or for failure to maintain in a safe condition or for not guarding against the action of frost. The court was right in submitting those propositions to the jury-
"We think the evidence amply justifies the verdict. The character of the soil around Manning’s home was such that it was liable to settle, yet the usual precaution to block the service pipe at the coupling or joint was not taken. That the settling was considerable was shown by the fact that the sag of the pipe at the break was six inches. The soil was also of such character that the action of the frost was likely to heave or unsettle it to a great extent, and yet the pipe was placed at a depth of less than three feet. The evidence also tended to show no attempt in the original installation to plaster or make tight the foundation where the pipe passed through, thus a ready access to the basement was afforded the escaping gas.
The order is affirmed.