49 Ind. App. 475 | Ind. Ct. App. | 1912
Appellee brought this suit against appellant gas company and others for damages for personal injuries caused by a gas explosion in a moving-picture theatre.
The complaint was in two paragraphs, to each of which a .separate demurrer was overruled and exceptions saved.
The cause was then put at issue by a general denial. There was a trial by jury, and a general verdict for appellee in the sum of $4,200, with answers to interrogatories.
A motion by the gas company for judgment on the answers to interrogatories, and the separate motion of each appellant for a new trial was overruled, and proper exceptions saved by each, after which the court rendered judgment on the verdict, and this appeal was prayed and perfected by the gas company.
The errors on which appellant gas company relies for a reversal of the judgment below present for the consideration of this court the rulings of the court below on the demurrer to each paragraph of the complaint, the ruling on the motion for judgment for such company on the answers of the jury to the interrogatories, and the ruling on said company’s motion for a new trial.
These errors, so far as we deem it necessary to discuss them, will be considered in the order just given. The only objection urged to the sufficiency of the first paragraph of the complaint is that its allegations, on the subject of appellant’s negligence are conclusions of law drawn by the pleader, and that facts showing negligence are not pleaded; also that there is no allegation that appellant gas company had notice of the “defective conditions” of the pipe in question. This paragraph is lengthy, and we shall set out only
In this connection it is important to consider the averjnents of the second paragraph of the complaint. This paragraph, in addition to the averments common to both paragraphs, proceeds, in substance, as follows: The said Southern Indiana Gas Company, had full notice and knowledge that said shows and entertainments were being so given daily and nightly in said building, and that large numbers of people were invited and induced to be present in said building at each and every one of said shows; that at the time of’ said renting, said pipes beneath said floor of said building were old, having been placed there more than twenty years previous; that immediately prior to the time the Southern Indiana Gas Company placed a gas-meter in said building, as hereinafter averred, natural gas had been continuously escaping from said defendant’s pipes in said street into the space beneath the floor of said building, and remaining in large quantities'under said floor, and rising ihrough the floor, and permeating the air in and about said building, of which facts all of the defendants herein had full knowledge and notice at the time said meter was so placed; that among other holes in said gas-pipe under said floor in said building was one where a riser had been taken out, and no cap placed thereon or therein, and no other means adopted to prevent gas from escaping from said pipes through said hole; that through the holes and leaks in said pipes the
When this second paragraph of complaint is considered, there is little, if any, conflict between the general verdict, which is a finding that such averments were proved, and the answers to the interrogatories when considered as a whole, and any apparent conflict between such verdict and the answers is, in a large measure, cleared up by the answers to interrogatories eight and ten, which are as follows: “(8) Previous to the explosion which caused plaintiff’s injury, was the defendant, the Southern Indiana Gas Company, notified by the owners or lessees or any lessee or any one else that gas was escaping in the Moore building at any other point than at the meter of the defendant gas company in said building? A. Yes.” “ (10) Did the defendant gas company have notice that there was any leak in the gas-
The fourth error assigned is the ruling on the motion for a new trial. The ground of the motion first discussed is the sufficiency of the evidence, appellant gas company contending that there was a failure of evidence on the following essential and material points: “ (a) There was no evidence of any notice to appellant gas company of the escape of gas after the time the meter was repaired until the explosion. (b) There was no evidence of notice to appellant gas company of the escaping gas which produced the explosion. (c) There was no evidence of notice to appellant gas company of any defect in the pipes beneath the floor, from which pipes the gas escaped that caused the explosion, (d) There was no evidence of any negligence on the part of the gas company.”
The other evidence in the ease showed that at the time the meter was installed the gas-pipes were not connected with any stove, and there was evidence tending to show that no one told Wheeler that the stove had been lighted.
Mr. Gregg, a witness for appellant gas company, testified as follows: “If I turn the gas on and the meter stands still, I take it for granted that everything is all right; if it moves as much as five-tenths to a foot, I turn the gas off at the sidewalk till the leak is stopped. If the meter moves, I notify them there is a leak, and they must repair that before their gas will be turned on. If no one is at the house, I leave a note at the house and leave the gas turned off till repairs are made.”
Under this and other evidence, and the principles of law before stated, applicable thereto, the jury had the right to infer — to put it most favorable to appellant — that the gas company was negligent in the first instance in turning gas into the pipes of said building when it did and under the conditions then existing; but whether we are correct in this
According to witness Harry Levis, he went with Mr. Holt on one occasion to notify the company, and he (Levis) did the talking. He testified as follows: “I told them there was a gas leak over there. The. meter or something was wrong. I didn’t know what was the matter, that we would like to have them come over to see about it.” Mrs. Myers, the woman at the office to whom he talked, said that some one “would come just as soon as they came back.” Levis testified further that “Two or three hours later the same man that put the meter on came and put a rubber washer on top of the meter. Three or four days after we notified them the first time, we went over again. Mr. Holt did the talking.” Holt testified that he notified the gas company twice when he did the talking. He testified, in substance, that two days after the meter was put in he discovered that gas was escaping. The first time he notified the company he told them that there was a leak up there, and that he would like to have a man sent up to fix it. That was in the morning, and some one came over from the gas company’s office in the afternoon. All they did was to tighten up the gasket of the union at the meter. Two or three days after that the odor of gas was again observed, and he went to the office
Witness Daily testified that he tightened the union, and did not smell any gas. On further questioning he said he did not smell it before he tightened it, that he didn’t “think it leaked enough to smell.” This witness first testified to making no test for escaping gas except with a match, but after the examination of a number of other witnesses, and after he had gone home, he was again placed upon the stand, and he then testified that “he examined the dial of the meter to see if it moved.” He admitted, however, that he had been a witness in the Personnette trial, on the same matter, and that he had no recollection of at any time in testifying about observing the hand on the dial of the meter to see if it moved.
There is some conflict in the testimony as to what this employe actually did on each occasion when he was sent to look after the escaping gas, but the jury was warranted in concluding from the evidence that on the first occasion he only tightened the meter at the union and on the second occasion he repaired the union at the meter, by putting in a new gasket and stopping the leak at such union, and that he tested the meter with a match to see-if it leaked. He then told the occupants of the building that it was safe — they could use the gas. ^ „
The evidence showed that immediately after the explosion an open tee was found in the pipe under the floor of the building from which a riser had been detached, which at one time had been connected with a stove above.
These principles are fundamental and recognized by all the cases heretofore cited, as well as by all other cases where injury has resulted from the negligent management or control of agencies dangerous to life and property.
13. Appellant gas company next insists that the court erred in refusing to give instruction seven, which was, in effect, that if the jury found that appellee was injured by an explosion from natural gas, and that such gas came from pipes other than those of appellant gas company, that it should find for'said appellant. This instruction was asked, and error is now predicated on its refusal, on the theory that there was some evidence to the effect that the gas which caused the explosion resulting in appellee’s injury came from the pipes of another gas company. It is true, as counsel insist, that where there is evidence before the jury to prove certain facts within the issues, and either party requests a proper instruction on the law applicable to such facts, it is the duty of the court to give such instruction. Dunn v. State (1906), 166 Ind. 694, 701, 702; Carpenter v. State (1873), 43 Ind. 371; Banks v. State (1901), 157 Ind. 190, 203, 204; Fleming v. State (1894), 136 Ind. 149, 153, 154; Wollery v. Louisville, etc., R. Co. (1886), 107 Ind. 381, 386, 57 Am. Rep. 114.
What we have said with reference to instruction seven applies with equal force to appellant’s instruction nine, refused.
The pipes referred to in said instruction belonged to the owner of the building. It is true, as heretofore indicated in this opinion, that, generally speaking, the gas company owes no duty to the owner of a building, in which it furnishes gas, to inspect the pipes belonging to such owner, yet such question is determined by the particular facts and circumstances of each case, and is frequently a question of fact to be submitted to the jury trying the case. Schmeer v. Gaslight Co., supra.
In this case there was evidence set out from which a jury might have inferred that appellant gas company’s agent, when he installed the meter, knew that the pipes in said building were leaking, or that if he did not then know it, the company was afterwards notified of such leak, and by
16. Appellant gas company urges that the damages are excessive. Appellee was a comparatively young man when he was injured, being about twenty-seven years old, and, under the evidence, was a man of industrious habits, of good health, and capable of earning $9.50 a week. Ills’main injury was a broken, leg. There were two fractures, one a transverse fracture of the femur and the other an oblique fracture of the same bone. There was evidence showing that the limb is considerably and permanently shortened, that a callous or bony lump over the fractured part affects the ligaments around the'knee joint and materially interferes with the flexing of the limb. Appellee, in addition to losing mu'ch time on account of such injury, has suffered much pain and, according, to the evidence, will continue to suffer pain on account thereof. He is permanently crippled, and his ability to earn money is necessarily permanently weakened. It is only where “the damages are so outrageous as to strike every one with the enormity and injustice of them, so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption” that this court is authorized to interfere with the verdict on this ground. Louisville, etc., R. Co. v. Kemper (1899), 153 Ind. 618; Hudelson v. Hudelson (1905), 164 Ind. 694; Cleveland, etc., R. Co. v. Hadley (1908), 170 Ind. 204; Chicago, etc., R. Co. v. Vester (1911), 47 Ind. App. 141.
Taking into consideration the age and habits of the appellee, the character of his injury, and his suffering on account thereof, its permanency, and ita influence on his earning
We find no error in the record. Judgment affirmed.