200 S.W. 1116 | Tex. App. | 1918
It is not apparent from the record whether or not the court sustained the appellant's demurrer to the plaintiff's supplemental petition. But assuming that the court did overrule the demurrer, there was no error, it is concluded, in so doing. For if the contract set up in the appellant's answer was, as alleged in the supplemental petition, obtained in point of fact by duress and was without consideration to plaintiff, she would be legally entitled to allege and prove such facts in avoidance. The first assigned error is overruled.
The peremptory instruction requested by appellant was, it is believed, properly *1117 refused by the court. The pipe which supplied appellee's apartment with gas entered the basement of the building from the street and connected by an elbow to a pipe going upward through an air shaft in the wall to the second story, and then through a hole into the room, and there connecting to a meter. The testimony for appellee goes to show that the employés of appellant in removing the gas meter broke the pipe which led upward from the basement, and thereby allowed gas to escape into the building, which, from some cause, became ignited and caused the explosion. The fact of explosion and the extent of it, and that the gas escaped from a broken pipe, was undisputed. The pipe was broken three or four inches above the elbow, and it was shown that the break was a complete and fresh one. The pipe was old and very much rusted, but without a considerable strain on it, as testified, it would not have broken. The employé in taking the meter out unscrewed the nut in the union of the pipe, and then with a monkey-wrench screwed the nut on the pipe. It was shown that a person could tell and would know when a pipe breaks while screwing a nut or shut-off on it. And there is evidence tending to show that the pipe was broken by the employés who took the meter out, and that they must at the time have known that they broke it; and such evidence was sufficient to authorize the jury to find that the breaking of the pipe resulted from negligence. And if the contract offered in evidence by appellant should be regarded as offered against the plaintiff, then there is nothing, it is concluded, in the terms of the contract that would relieve the appellant from the consequences of the special negligence averred as resulting in her injury. The evidence for plaintiff, it is held, makes a jury question.
It is believed that the evidence warrants the findings of fact by the jury, and the sixth assignment of error is overruled.
The other assignments of error may not be reviewed, it is concluded, because no exceptions were reserved. Railway Co. v. Cody,
Judgment affirmed.
