284 S.W. 405 | Ky. Ct. App. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *79 Reversing.
The appellees, George W. and Dewey Vance, recovered judgment for $2,500.00 against appellant, Prestonsburg Superior Oil Gas Company, in the Floyd circuit court in an action by them against it for damages resulting from a fire which destroyed their dwelling house, alleged to have been the result of its negligence. Hence the appeal.
Appellant's chief ground for reversal is that the trial court erred in not directing a verdict in its favor at the close of the evidence. The facts are these: Appellant supplies natural gas to the city of Prestonsburg. Appellees owned a dwelling house within that city. They had applied for gas service and servants of appellant were engaged in piping the residence and installing the meters. It was necessary to install two meters because the first and second floors of the residence were occupied by different families. A single line of pipe from the gas main in the street carried the gas to the basement of the residence. By the use of a tee joint the gas was led from *80 it through separate lines and meters to the two apartments. All connections had been made to the upstairs apartment. Nothing remained to be done to complete the piping to the first floor apartment except to make the connection at the tee. A plug was unscrewed from the tee, and, while the connection to it was being made, an explosion occurred which shook the house considerably and burned the three workmen engaged in making the connection, one of them very painfully and severely. In the excitement which followed it was discovered that a fire had ignited in the room immediately over where the explosion occurred. The two workmen who were not so severely injured and others who had responded to the alarm threw water on and put out the fire. There is a difference between the testimony for appellant and that for appellees as to the extent to which the fire had ignited and burned before it was put out. The witnesses for appellant testified that the fire was confined to some loose newspapers which were in the floor of the room immediately above where the explosion occurred. The testimony for appellees tended to establish that the fire also ignited and burned part of the canvas and paper on one wall and on the ceiling. Everybody present thought that all of the fire was extinguished. There is quite a variance in the testimony as to when the explosion occurred, some of the witnesses estimating the time as early as three o'clock in the afternoon, while others place it as late as five p. m. We feel safe in assuming that it was about four o'clock p. m.
Appellee, George W. Vance, occupied the first floor apartment and was away from home at the time the explosion occurred. He returned, however, about seven o'clock and, of course, examined the premises and satisfied himself that the fire had all been extinguished. He and his family retired about nine-thirty o'clock. Mr. C.B. Wheeler and his wife occupied the second floor apartment, and they appear to have just moved into it and not then to have finished the placing of their furniture and household effects. They were both in their apartment when the explosion occurred, and both were present and took part in what was done to extinguish the fire discovered shortly after the explosion. Between that time and the time when they retired for the night they appear to have gone several times to the part of the house affected by the explosion and fire to assure themselves that it had all been extinguished. They remained up until eleven-thirty *81 or twelve o'clock that night, and immediately before retiring descended to the first floor of the building and went again into the room where the fire had been to see that it had not broken out afresh. Observing no signs of fire they returned to their apartment and retired.
At approximately two o'clock the inmates of the house were awakened to discover that it was afire and the fire then was so far advanced that they were able to escape only in their night clothing and were unable to save from the building any of its contents. The testimony all establishes that the fire when discovered was in that portion of the house beneath which the explosion had occurred in the afternoon and in which the fire, discovered immediately after the explosion, had ignited.
Appellant does not seriously contend that there was not sufficient evidence to make it a question for the jury whether the explosion at four o'clock in the afternoon was the result of its negligence. Appellant's servants who were doing the work testified that the explosion occurred after they removed the plug from the gas line and while they were connecting it with the line to the meter. They admitted that they did that without having turned off the gas and while the gas at full pressure was in the lines. These facts and the fact of the explosion were sufficient to take the case to the jury on the question of appellant's negligence, regardless of the further testimony by its employees that they did not strike any matches or do anything to cause the explosion. The circumstances here are very much the same as in Louisville Gas Company v. Guelot, et al.,
Appellant bases its right to have had a directed verdict at the close of the testimony upon the contention that there is a total absence of proof in the record that the fire which occurred at approximately two o'clock at night which destroyed the residence was the direct and proximate result of its negligence, if such be conceded, which caused the explosion and fire in the afternoon. The argument for it is that since everybody present, including appellee, who occupied the lower apartment, and Wheeler, who occupied the upper apartment, threw water on and extinguished all the fire visible and threw water into the walls of the building where it was thought possible fire might have ignited and satisfied themselves thoroughly *82
that all the fire caused by the explosion had been extinguished, that all of it was extinguished; and that the fire which ignited later destroyed the dwelling house came from some other cause. The evidence, however, discloses that the heat from the explosion was sufficient to inflict severe and painful burns upon one of the workmen engaged in putting in the gas connection. It was sufficient to ignite a fire among the papers stored in a room above where the explosion occurred and the canvas and paper on the wall of that room. After the discovery of that fire appellees and all persons present appear to have used every reasonable means to minimize the damages for which appellant was responsible as a result of its negligence. They all used reasonable care to extinguish the fire then discovered to have been ignited. In so doing they appear to have done all that the law required of them. (See Hogle v. New York Central, etc., Railroad Company, 28 Hun. (35 N.Y. Sup. Ct.) 363, and the cases therein cited; Farrell v. Minn. R. R. Ry. Company (Minn.),
It is insisted for appellant that the judgment herein must be reversed for incompetent testimony admitted over its objection. That point is well taken. While testifying for appellee, C.B. Wheeler, over the objection of the appellant, was permitted to testify that Clarence Hale, one of appellant's servants, who was installing the gas fixtures when the explosion occurred, told him some two or three months after the explosion and again about three weeks before the trial that one of the men working with him lighted a match to test a joint in the pipe, and when he did so the explosion occurred. That was admitted by the trial court as substantive evidence of negligence upon the part of appellant. No rule of evidence is better established in this jurisdiction than that a master or a principal is not bound and can not be affected by admissions of his servant or agent unless part of the res gestae. L. N. R. R. Company v. Moore,
The testimony of Jonathan Fitzpatrick and Jim Owens, which the trial court permitted to be heard by the jury but which was subsequently withdrawn as being incompetent, was incompetent, and upon another trial will not be permitted to go to the jury.
While the witness, B.P. Carter, was being interrogated as to the value of the residence destroyed, objection was interposed by defendant to the questions propounded upon the theory that a false standard of measurement was being given to the witness: The court interfered, and from the bench gave the following as the correct standard by which the witness could testify *84
as to the damages resulting from the destruction of the house: "The cost of reconstruction or market value, coupled with what it would cost to replace it, couple it together, and if it would bring as much on the market as it cost to replace it, that would be the same criterion, the replacing of the house." The attorney then stated to the witness: "Use the statement given by the judge and answer it, what the house would cost at the time it was burned in 1921?" The witness answered: "I would put it about $7,000.00." As reference to I. C. Railroad Company v. Nuckols,
Appellant complains of the action of the trial court in permitting appellees to file an amended petition increasing the amount sued for at the conclusion of the evidence. Since the judgment will have to be reversed for the, admission of the incompetent evidence above mentioned, it is unnecessary to consider that question. Appellant, upon another trial, will have ample opportunity to present such evidence as it can that appellees were not damaged in the amount claimed by the amended petition.
Appellant insists that the verdict for appellee was excessive. In view of the fact that the case must be *85 tried again, we deem it unnecessary to determine that question.
Appellant complains of the instruction on the measure of damages given herein. We find, however, that it in all essentials accords with the views of this court as hereinbefore expressed. However, since the case must be reversed for the other reasons given, upon another trial, instead of directing the jury that if they find for plaintiff they will find from the evidence the "reasonable value" of the house destroyed at the time of its destruction, they will be instructed to find from the evidence the "fair and reasonable value" thereof at the time and place destroyed. Though no instruction was offered and no complaint is made that it was not given, in addition to the instructions given the trial court will, upon another trial, define "negligence" as used in the instructions of the jury.
For the reasons indicated, the judgment herein is reversed and the cause remanded for further proceedings consistent herewith.