*1 tends over a the knee. There was sore” “running on the lateral side right thigh of the until summer” Her up “sometime in the of 1943. right thigh pains night her her. She is restless at cries out in sleep. body A condition part of “bad mechanics” in lower plaintiff’s back is due to artificial and will extremity continue growth, until she reaches maximum greatly when will be this condition by length. the use of an finally relieved artificial limb of correct Manifestly, money plaintiff’s physi- cannot effect the restoration of body. exchange money. cal None body would whole for sum of amount Courts hold an of recovery should be measured that which reasonably fairly compensatory. Fair and reasonable com- pensation in a ease must upon rest facts viewed relation conditions, regard uniformity. to economic and with a to reasonable Bryant City In ease Rys. v. Kansas Co., 342, Mo. it was held $13,500 Court en Banc that the sum of reasonably compensatory leg, amputated the loss of a above boy years knee. than when less four old
the. injured. injuries had sustained permanent no other leg. than the loss of his In year The case decided in the 1921. City the ease of Shields Rys. Co., Sup., v. Kansas 264 S. W. year 1924, $13,500 judgment
decided was' not disturbed. Plaintiff, girl, age years was three nine injured. when months leg amputated Her halfway “about between the foot and knee.” injury No other in the opinion. was mentioned In the case $18,000 at bar award (at this time purchasing of decline power dollar) should not be held to be “out line” with the approved awards Bryant cases, Shields when we take suffering into pain consideration the incident in- juries, leg, resulting ugly other than the loss of her per- manent scars we have mentioned. judgment should be affirmed. Bradley Dalton, GO.,
It ordered. is so concur. n Osdol, C., PER foregoing opinion CURIAM:—The Van
adopted opinion judges as the of the court. All the concur. Stephens City Appellant;
Richard Rich- Company, v. Kansas Metropolitan Stephens, Appellant, ard Life Insurance v. 39394. 191 W. No. 601. January One,
Division
, M. Miller appellant City Charles Kansas *4 James R. Sullivan and Raymond Walter A. for respondent Richard
Stephens. *6 Raymond appellant Walter Richard James R. Sullivan and A. Stephens.
Clay Rogers Mosman, C. Rogers, respondent.' Bell for Conrad in- DALTON, $25,000 damages personal for C. Action for alleged juries negligence have been sustained reason of defendants, Company, hereinafter and Insurance referred to as Gas for Company. jury a in favor of returned verdict against $8,000 Com- Company, Gas but for the Insurance found Judgment pany. entered on the verdict. Plaintiff and the appealed. employed Plaintiff a a base- porter barbershop story building Building, ment the Grand Temple Avenue office engaged located at Ninth and City. Grand Avenue in Kansas While work, injured about his explosion which occurred in a building'. operated basement of the owned and utility, public the Insurance Company, The Gas owned operated main in Avenue and furnished Grand building. natural for use its appeal,
On the Gas third contends that petition amended cause failed to state facts sufficient constitute action; make the' the evidence was insufficient to *8 case jury; that returned; no lawful that verdict was erroneous evidence objection; giving admitted over court and that the erred refusing instructing in in jury and the of the that instructions and Company degree required highest Gas the care. to exercise of The petition charged defendants, third amended “that charge them, each of complete building and control said of pipes adjacent thereto; mains and that connected therewith plaintiff any thereover; did not have . . . said control that explosion extraordinary occurrence, unusual and and would defendants; have . . happened negligence not but for of the . the negligence them, joined, that and each con- defendants, of the of causing negligence curred and combined with the of in the others causing and in permanent said to suffer serious and injuries.” petition charged Company the Insurance also charge building.” in full of “was and control said Company says Gas petition contains no direct alle- gation general negligence; allegations specific or as to contradictory conflicting, control of are de- and self structive; respect negligence the statement with to a- mere is fact; statement of conclusion presents petition no issuable that the injuries plaintiff’s between pleads no causal connection negligence company’s or between the in- against juries; and that no cause of action is stated it under res theory. loquitur any ipsa doctrine on other The Gas that, petition filed since it a demurrer to the further insists require court, it state case trial is entitled his allegations and to have the more pleading rules under strict taken against pleader. strongly
844 demurrer, but an upon its not stand did answering By over merits.
swered over and went to trial pe its going trial, Company waived demurrer the Gas a cause petition to state defects, except all failure of the tition and Kan rel. subject ex jurisdiction matter. State action and 357, 262 S. W. City Light (Mo. Sup.), v. Trimble sas & Power Co. petition after verdict and determining sufficiency In 359. indulge favor reasonable intendment judgment, every we must Mo. (In Banc), 323 petition. Hamilton v. Standard Oil Co. (2d) 19 And it that defendant 531, 679, S. 683. is immaterial W. may court petition attacked for the same cause in the Dry Co., Bank City below. National of St. Louis v. Carleton Goods wholly 339, (2d) petition “A 69, Mo. 67 S. W. 71. does certainty lack fail to a cause action because of lack of or a state allegation, informality in the statement of definiteness nor defectively fact, of an nor because cause of action is essential Baugher Co., 1233, Gamble 324 Mo. stated.” v. Construction 946, objection 949. (2d) “Such is if reasonable S. W. disallowed intendment, implication fair stated, from facts or if most allegation may got by in liberal construction the essential be at Storage Kuhlmann, Ice & ference.” East St. Louis Cold v.Co. 685, 702, 253; 142 W. ex 275 Mo. Long, Mo. S. State Perkins v. rel. 914; 169, 953, Sec. R. S. general charge
“A which .negligence, predicated is on an causing good injury, against act the defendant is ob jection stated, necessary that no of action cause and it is not showing facts specific negligence state in order to state a cause action.” Zichler v. St. Louis Co., Public Service 332 Mo. petition charges 59 W. 657. A negligence which terms, general more, good judgment. without after verdict and rel. Trimble, ex Brancato v. (2d) 4; State 18 W. *9 Hopkins v. 319 Daues, (2d) 897; State rel. Mo. 6 ex S. W. Moussette, v. 337 85 Watts 487, 491. petition We need not determine whether the stated a cause of ipsa loquitur action res under the doctrine whether it could have been made more definite certain on motion.- No such issues were presented or ruled. The issue presented sole is whether petition against states a cause of action Company. Gas petition The con charge general negligence tains a of alleges and further gas that a place building causing in the took him to be knocked down falling causing objects him; strike the’explosion would happened negligence but for of the defendants; negligence the defendants, and each them, with combined negligence causing of the others in said and in causing permanent serious and plaintiff' injuries. to suffer petition The suf ficiently alleged negligent the Gas was and that the ex-
845 plosion injuries thereby. were plaintiff’s caused did court general Company’s to the overruling not err the Gas demurrer petition. only we
On the issue demurrer to the evidence consider favorable to be drawn evidence most the- inferences disregard of the it aids therefrom and the evidence defendants unless against case Gas The basement rooms, Temple Building partitioned into Grand Avenue was several being a occupied by where barbershop, one worked. South barbershop dressing of the which we room,. storeroom and building. operation infer were used in connection with the of the An oil furnace located in the southeast corner of the basement supply an oil tank corner. The in the southwest west basement wall 5 extended to curb line and a 15 feet sidewalk wide part inches thick extended above the west basement. gas owned and 4 main maintained a inch Avenue Grand building the west of the and out 6 some feet from the curb line. paved concrete, asphalt.
The street was with 3 covering with .a inch paving 9 was from to 16 inches The gas main was thick. laid in rock space cut and the pipe street above the clay back with rock, pieces being filled and broken some of rock 6 inches in gas The distance top diameter. between the main base of pavement and the 9 14 A varied con- inches. from crete tunnel 4 5 50 length, feet and feet in had been constructed under, east, the basement of and extended from west to some 35 feet from building, the south side of the underneath the storeroom, dressing 2 gas room and hall. A inch pipe service gas entered the and connected with a basement meter located inside wall. pipes the west House meter extended down through opening entered directly tunnel inch almost below meter. There was manhole entrance into the tunnel in the vicinity, same but manhole was covered with a board cover. opening Another into the tunnel was located 35 feet east of the west opening wall. This covered with a plate on the brass floor dressing room. The tunnel contained pipes and water and, at 'a pipe extending east connected with shaft up to the top of the eud building. pipe This shaft pipes, housed pipes ..sewer and water tunnel, At pipes. the west end there was opening feet through by 2 the west basement feet wall and a opening tunnel or the rock extended out about feet pavement under the opening The rock sides this broken, street. were’ cracked’ and' seamy. opening connected, This also with a void or space wide, between the west inches wall and the rock formation under *10 pavement. The west wall was the street construction, of stone some thick, tight plastered sealed 18 on inches the inside of the base- the pipes in pipe, ment. heat water from hot. the The at shaft the 846 of air strong to east current end of the tunnel west
east caused all the basement floor. times in concrete tunnel under at the p. dropped street 1939, person 5:30 m. About November dressing room, a match and the brass car token in lit removed the flash of blue plate There was a opening from the into the tunnel. par- of the which most flame followed demolished an side- up part the basement, tition walls of lifted and broke the gas basément, particularly near the walk west end of over the the building. the ex- damaged eentér of and otherwise the (cid:127)meter, gas meter and plosion point vicinity of the in immediate the some 35 tunnel, is, the into the west end of the above manhole plate The west wall of where the brass was removed. feet west the side- damaged explosion, except or where the not disturbed gas gas leaks were about the walk was lifted off or broken. No found tunnel, meter, gas 2 in even pipes the inch the pipe service the through the meter gas passed which explosion. after the had which would have been not the amount in recent months did exceed building. reasonably gas three consumers in'the the used gas ex- gas supplied have the the amount of metered could not for. tunnel, although had plosion. occurred there No lifted off at cover fire in the tunnel. The been manhole west end of the tunnel. sidewalk gas opening explosion, smelled at
After gas 4 main inch gas location. The level above the meter at street 35 feet severed) point some (entirely at was found to be broken building, is, about pipe entered south of the service where about explosion. Soil removed.from from feet the center from would have been gas colored as it in the main was .break night of but gas. explosion, On the long exposure escaping discovered, escaping gas 75-80 was detected before the break was lighter along main. Gas is gas inch feet north of the break and path confined, When it follows air it to rise. than tends main under gas escaping from the broken least resistance gas spread main or out pavement into have followed would reached about it and would have formation seamy and creviced rock have entered tunnel of the wall would opening west .the the west end wall. When it entered through in the west opening Any gas to the east. it have followed the draft tunnel, would through opening below inch basement escaping into the tunnel, end of the cover at west gas meter, about manhole In vicinity meter. ceiling in the to the have risen would happened. was evidence this is what There experts, opinion it will not burn, air exceeds percentage if but 30% explode. To it will burn, from will 13 to 13% 30% in the air had to percentage tunnel, the in the have burned exploded vicinity and, have from to been 30% *11 gas to. have been from gas meter, to air had percentage the the merely set in acted as fuse to gas to The the tunnel had 13%. large A west end of the tunnel. explosive off the mixture above the perhaps much gas necessarily required, amount of have been as would necessary gas, proper percentages as 1150 cubic to obtain the feet of vicinity in the gas burning exploding in the tunnel and the to the strong air eastward the meter, particularly with draft of the of the base- tunnel. When the oil furnace in the southeast corner large air cre- operation ment was in it amount of consumed strong direction, in that but the furnace ated draft basement p. explosion 5:30 been 3:30 before the at shut down about m. p. M. gas in the basement complaints
There had been of the smell Company The explosion. for 3 months Gas before along (every wall notified, had been had been made the west tests vicinity meter, nothing week) gas was found. but preceding explosion report gas One had been made the week break in the main must and the was The notified. gas explosion for the have- prior
have occurred some weeks to the evening along traveled 80 was discovered the feet the main to where it explosion. after the thoroughfare. pave- The heavily
Grand Avenue awras traveled rough occurred, cracked, was ment, above where the break the main through gas escaping it. Some uneven, but was patches level. inches below the- surface the street were as much as fatigue and, in the gas typical The break in main fracture awas opinion sup- improperly of an because it was expert, broken heavy ported, because traffic loads subject it was because pipe. of vibration from traffic to the being and shock transmitted that the break had color of the indicated break, soil about gas main explosion. occurred some weeks months before wall by could not have west explosion, been broken since explo- experts, not cracked opinion or disturbed. In the sion gas explosion, came from outside natural building and from the break in main. evi- by
Before to the determining the issue raised the demurrer dence, we admis- assigned consider with reference to the the errors sion assigns of evidence. error on admission The Gas experts. certain given by witnesses, who testified evidence five Three at they were cross examined witnesses and were length by ob- Company. evidence counsel for the Insurance jected being witnesses Two were developed on cross examination. for the out in objected to is set Insurance The evidence opinion. 18 subdivisions, this and is so extensive it cannot be set out in opinion objection Some of the made experts which evidence explosion that the main gas; natural caused that the
848: entirely too explosion, before, was not broken because laid but transmitting pipe; shallow and because of traffic shock to the through wall, through the- “the would have travel it”; rock and earth hit main on slant to break gas causing retaining explosion; wall was not 'disturbed that the from the main and followed came break in the through underlying gas main, crevices the- in-the rock strata *12 gas, tunnel, basement; old to the tunnel that the abandoned under ignited through plate -at the burned the tunnel and the brass tunnel, explosive mix- flame came out at the west of the found an end explosion being exploded, ture above and the central force of the manhole; above the that of the soil about the break in the the color pipe by gas; that color evidenced that the was caused escaping months; be been weeks or several that “there could several very gas”; one percentage but a small of methane in sewer and that expect pipes would to find leaks house reason of building. explosion jarring the not.
Appellant contends that the witnesses were qualified; only opinion that the evidence was or of conclusion in- upon improper incompetent it was based witnesses; that ferences, speculation conjecture; province, on that it invaded the jury; question of the it decided, instances, in some ultimate that issue; hypothetical involv- part questions, at it was based on ing-facts evidence; prejudicial not disclosed and that all was harmful to the Gas testify question qualification
“The of the of a witness as expert resting an is to determined trial court. is a matter be It largely appears in its discretion and will not unless it be reviewed Co., that such Alton 348 Mo. discretion abused. Arnold v. R. 516, 62; Pitcairn, 915, 154 347 W. (2d) 58, S. W. Wild v. Mo. 149 S. (2d) 800, Cheeking witnesses, qualifications 804. several experts objected who are testimony to, testified as and whose is we opinion of the no record shows abuse the court’s discre regard. tion general rule, a facts,
As a witness from which the must state jurors stated, are opinion. to form their “But when facts are all upon subject inquiry, intelligent drawn opinion if.an cannot be ordinary: by inexperienced persons, therefrom such as constitute the by- jury, exception general who, an is rule, persons made to the experience, observation, knowledge, qualified peculiarly or are to draw facts, are, aiding jury, conclusions from such for purpose of’ give permitted opinion.- exception their is from allowed neees-. sity. witness, ’An expert manner,' discharges in a the functions Of juror; and his evidence should never be admitted unless it is clear' jurors capable, experience, from themselves are not want knowledge subject, from the'. -conclusions draw correct on
849 Co., 277, Grain 340 v. Uhlmann Mo. 100 S. W. proved.” facts Cole “expert possess knowledge 311, must (2d) 322. An education jury forming opinion which will an experience ordinary aid or inquiry, experi when from common subject matter ’’ 501, correctly. Kurn, 348 Mo. they could not do it Bebout v. ence 125; Co., 61; v. Pac. R. (2d) 120, 154 W. Homan Missouri Mo. S. objection It a valid (2d) 617, proper 64 W. 625. is “not S. testimony province jury expert question that the invades the long witness, or for a so as it con calls conclusion Co., supra; v. clusion of law.” v. Uhlmann Grain Mann Grim- Cole Clinic, Hospital & Mo. 606. “An Smith expert necessarily, his witness, states conclusions about mat certain - permitted long ters which would not be of other witnesses. As conjecture, opinion guess his but is upon not mere based facts data, adequate it is properly Duerbeck, received.” Vitale v. (2d) 691, W. presented explosion, source and cause of situation too complicated juror ordinary involved and apparent and it is opinion testimony experts that the helpful. jury would be *13 right testimony. had the of course to believe their disbelieve The opinions experts, under the facts shown this record, were speculation conjecture. not mere and Facts qualifi were stated and opinions given so might jury. cations shown that the aid the holding testimony experts did not err in court the of these ad was missible. Fair Mercantile Co. v. St. Paul Fire & Ins. Marine Co. (Mo. App.), 930; W. 175 S. Phares v. Century Co., Elec. (2d) 91, 82 W. S. 95. Company
The Gas contends there was a that failure proof; of plaintiff that did not make jury ;(cid:127) submissible case for the that there gas was from no direct evidence that the broken 4 inch main entered explosion; the basement or caused the opinions that the experts the upon speculation predicated conjecture were and were insuffi case; cient to Company’s make submissible that the Gas evidence causing gas showed the the could have come the house gas pipes openings or from sewer in building; the that the factual the proof inconsistent; inferences from made were that was inference inference; based on did not show with reasonable cer tainty cause 'for which Company the Gas would be liable injury; proximately caused the the verdict was upon based conjecture work, speculation; guess and that the doctrine of loquitur not ipsa applicable was Company. res the Gas against was submitted cause Gas Company under doctrine, specific ipsa loquitur negligence but on res and instruction required finding that the break in main and the accumu- dangerous quantities of gas in lation of basement length prior such of time existed for to the explosion that, care, have exercise of due the Gas should discovered “repaired stopped leak and warned plaintiff,
the break and leak,” injury plaintiff. and avoided the said its Company assigns per- error on the refusal of While Gas plaintiff’s instruction at close at close emptory case and only request all evidence, own need consider at the close of its we. offering request subsequently 'The first waived the evidence. all place, and the second one was out of until the close of evidence unnecessary fur- will to review the evidence evidence. It be have, Considering we plaintiff, ther. favorable to evidence hold that therefrom, and the reasonable inferences to be drawn we against to make a case the evidence was submissible sufficient finding in on the to warrant a favor Gas against the Gas submitted instruction Com- issues pany. Bailey Reynolds Co., 325 Mo. James v. Chandelier (2d)W. Company assigns of its instruc The Gas error on the refusal “ “ “ ” ” jury P P 0 ”. would told tions Instruction depth gas main laid beneath sufficiency of the which against the negligence street “as an element surface of the Company,” their consideration. was withdrawn from defendant any question of whether withdrawn Instruction “0” would have ‘‘ negli by traffic, as element of caused to be broken main was ’’ concern against The circumstances gence defendant Gas any, of effect, main laid if depth which the and the ing causing properly for the considera the break were matters traffic determining main had broken jury whether the tion of the been charges any such petition did not contain explosion. The prior to the jury sought be withdrawn from the negligence as were given plain at instructions charges were contained no such jury guided by the may that the request. We assume tiff’s instruc giving and refusal of withdrawal given. instructions *14 and, trial court unless that the sound discretion tions is within trial court will not be disturbed. abused, is the aetion of the discretion 914, 917; (2d) 169 W. Kick Weakley, 1092, 350 Mo. Atchison v. 512, Raymond (2d) 516; on 752, 137 S. W. Franklin, 345 Mo. v. 157, 166; Davis v. Buck’s p. Stove Instructions, 1, Vol. Sec. Missouri (2d) 47, 52. The trial court did 49 S. W. Range Co., 1177, 329 Mo. & “P” refusing instructions and “O”. its discretion in not abuse assigns giving of Company error on instruction The Gas giving imposing and Company because to Gas prejudicial G-m as theory seeped the build that into to prominence undue given The instruction was at gas main in street. ing from the Insurance Company presented the Insurance request finding requiring An of essential theory. instruction Company’s not is a comment on evi- favor of defendant a verdict to facts
851 nor emphasizing denee the undue required facts be found. Co., Ward v. Mo. Pac. R. 311 92, 908, Mo. 911; 277 S. W. Bloecher Mo., Duerbeck, 359, (2d)
v. 333 62 553, 558; S. W. Ward v. Fessler (Mo. Sup.), 252 667, 671; S. W. City Grubbs v. Kansas Public Service Co., 329 390, (2d) 71, Mo. 45 S. W. 79. We are unable to see how- this adversely instruction could affect Company, the Gas as be plaintiff and Company, particularly tween the Gas ques_ since the tion of whether leaking gas or Company’s not the Gas mains entered building, or- caused explosion, other in. covered instructions, including given request several at the of the Gas Com pany. assigned giving
Error on the 2, directing, No. instruction against finding Company the Gas hypothetical if certain were facts The,Gas jury. found theory Company, pe on that the charge any negligence all, tition did not at specific contends that the charge negligence upon which the instruction based not petition; stated in the and that there was support no evidence to instruction, is, no that evidence from the break in the main- building, accumulated in the basement of the' and for such time prior 17, 1939, November the exercise of care the due Company Gas should have discovered break leak presence gas in time to have warned repaired stopped the leak prevented injury. We have held that the.petition a cause stated the evidence action was sufficient to make case theory on the submitted. neg submitting court did err in special cause‘on the 7
ligence shown the evidence. Grimes Red 33 Co., v. Line Service 743, Mo. 85 (2d) 767; Moussette, 533, S. W. Watts 85 v. 337 Mo. (2d) 487, 491;
S. W. Shain, ex rel. State and to Use of Reeves v. 550, 122
Mo. 885, S. W. given
Instruction 3 at request plaintiff, -advised the jury “by ‘-due care’ as used in these instructions with reference City highest degree- defendant Gas Company, Kansas is meant the By highest degree care. ‘the care’ is meant that care which very .prudent person careful and sim would use under the same or assigns giving ilar circumstances.” Gas error of instruction 3 and that it prejudicially contends erroneous since ordinary only required care exercise com danger mensurate with- the to be avoided. -directly pre
We find that do not this court has ruled the issue although attention, sented. No such has been called ease to our 117, 132, Blarcom, case of Paden v. Van this court in approved effect the rule stated in Barrickman v. Marion “ Co., Oil person W. Va. L. R. A. as follows: ‘A. heaters,
corporation engaged furnishing gas. stoves, natural *15 pipes, etc., purpose light, heat, and for the domestic fuel in
852 dwelling house, diligence and care, skill, is bound exercise such to danger- delicacy, difficulty operations as all its is called for and may not business, injury of the to others ousness nature of the danger difficulty, thereby; delicacy, and say, be that is to if the caused diligence are great, extraordinary extraordinarily are skill and ” required.’ 81, App. 125 Gaslight Co., v. Mo. Sipple In case Laclede “From 608, Appeals 102 said: 89, 611, the Louis S. W. St. Court attention to study elsewhere, with due careful and cases opinions of ablest judgment and the soundest courts and ascertain the judges country, able to deduce we have been commodity dangerous character of the highly view of rule mains, and being through its gas company transmitted through tendency escape therefrom because of its to well-known entailing only as element not permeate atmosphere earth and an disaster, applicable probable principle and possible but death or producer transmitter to its transmission and conduct is that the with required that behalf gas, operations is to conduct his extraordinarily very degree an high being It of care and skill. high degree care element, extraordinarily of skill dangerous rule conducting it; say, to the law of that is is exacted those adjusted, respect its is ordinary with transmission care entailmen'ts, by dangers probable known a standard view of its dangers usually attend proportionate which probable of care dangers as natural delicacy, difficulty, nature and of the business though degree might consequences . even this of care extend . . requirement slightly beyond general rule with in that behalf only dangers respect ordinary to the care exercise to avoid such anticipated busi- particular are be in the conduct of reasonably ness.” City Company,
In v. Kansas 204 of Nomath Hotel Co. Gas the case City App. 214, 975, 980, Appeals 223 the Kansas Mo. Court of very true, owing dangerous said: “It character of tendency escape of its well-known from the because mains through openings percolate earth into cavities burn there causing charged very explode, great' injury, the defendant with degree high óf . . . care in the transmission control thereof. insurer; degree com company A is not an but is held to a of care ’’ dangerous commodity with the mensurate character it handles. Taylor Co., App. 185 Sée, Joseph 537, St. 172 S. 539, v. W. (Mo. 624; County App.), 519, St. Louis Gas Co. W. Brauer v. S. County (Mo. 521; App.), Messmer v. Louis Gas Co. 42 W. St. 965; City Light (2d) 963, (Mo. App.), Hanson v. & Traction Co. p. 804, 810; S., 731; 590, 178 S. W. J. Sec. C. Sec. C. J. Oil, 615; 56; p. Gas & Hout’s Plead Am. Jur. Sec. Missouri 1756; L. An ing Practice, & Forms 138 A. R. 870. Vol. *16 annotation, L. A. R. states: “The rule-deducible from the reported that, decisions is in highly dangerous view of the char- gas of tendency acter and its escape, gas to a company a must use degree of care prevent to escape gas of the pipes its propor- danger tionate to the duty which it is its to avoid.” n The Gas Company only was required degree to such use of care as ordinarily prudent person would exercise -like under circum- dealing in dangerous stances with such “Ordinary a commodity. care is a relative term, and requires precautions its com- exercise under;the dangers
mensurate with the reasonably anticipated to be Stumpf circumstances.” v. Panhandle Pipeline Co., Eastern 228. giving: The court in in- erred unnecessary struction It will presented be to rule the issue jury. with reference to the verdict the of
We now consider plaintiff’s judg- from the appeal verdict and in ment favor of the Insurance In addition the facts stated, it Company the heretofore was admitted' that Insurance owned operated building the at before explosion. the time the. There was plaintiff, explosion, three evidence months before the reported building had superintendent of the that he smelled gas basement; natural in plaintiff subsequently: made two complaints superintendent; three to the and that others had com- plained gas quite often, complaint being day one made a or so before explosion. superintendent building of the notified the.Gas complained smelling gas Company párties in these building tests, gas a no and man was sent over to make but .was equipment mechanical discovered. The Insurance had no regular system. testing gas maintained of in- for leaks and no although by. a spection, pipes tapping some were tested with hammer explosion, tests were made soap and with and water. After the gas-pipes- it was there were leaks in house build- found that made, very rusty. were ing pipes of the thin and Tests some along wall, explosion, and after the indicated the west before that no ‘ coming or from about .the gas through wall meter. The adjacent only feet barbershop located storeroom and few location, explosion. addi- gas meter center In. from the pipes, openings were .found gas leaks in the house tion An openings which pipes building, sewer basement building. A sewer gas escape sewer to- into permit main would side, side, house rather than the the sewer trap pipes sewer gas escaped have therefrom. Some were could sewer tunnel. Sewer sewage the sub-basement dripped into broken and methane and ex- sewers and it contains always present n might been caused have combination plosive. building gage gas pressure near showed-a gases. A-chart on p. explosion) pressure (at sudden at 5:30 m. the time release main. would been made a sudden break ex- theory It involved in part gas pipes in plosion leaky house pipes came from sewer by the evidence and, course, profited explosion and in- liability for the efforts of each defendant to shift the leaks in juries contended the other. The Insurance Com- and the Gas gas pipes house caused were *17 explo- was caused the pany main contended that the break in its general negligence. petition charged stated, sion. As the against Company the doc- Insurance under cause was submitted the ipsa loquitur. trine of res in giving of three
Plaintiff, assigns error on the appellant, G-m Instruction requested by structions Insurance jury found Company if directed a verdict for the Insurance (among facts) gas, natural other was caused that any building, gas pipes that said leak or from in the did not come Company seeped building, from the Gas and leaked into the but know, Company in if “did not street, mains Insurance not have known ordinary part care on its could of exercise explosive building, quan if gas so, into in seeped that said had said against you tities, you then are cannot find verdict instructed that ” Company . . . Metropolitan Life Insurance the defendant jury Insurance “was H-m told the that the Instruction discovering ordinary existence only required in to exercise care quantities.” explosive in gas of natural proof upon jury of I-m “that the burden Instruction told Metropolitan defendant, Life Insurance prove to that ordinary care, of should have knew, in the exercise Company, or coming quantity gas of natural known, explosive was an there that building, accumulating within the tunnel or basement of its into or by the dangerous quantities, in exercise explosive time, of in changed or remedied said ordinary part, care on its to condition, . . existed, before if it law, the Insurance that, under the had Plaintiff contends knowledge delay action, escaping gas, with of right until no “explosive quantities gas”; of danger that imminent was plain- an burden on placed excessive and unlawful instruction G-m danger Plaintiff-appellant so in- of imminent. prove tiff notice gas required he show “that was more than no event that in sists building and that said escaping into said defendant had actual stated, As the evidence notice thereof.” disclosed or constructive gas explosive. Any mixed with air was natural that 5 13% therefore, with air in proper mixed gas, percentage quantity instruction, view of the the Insurance Com- But in explosive. had actual knowledge it or constructive unless liable, was not pany
'855 building. seeped into said “explosive quantities” gas had required I-m, ours.) instruction (Italics Under knowl- actual constructive Company had or that the Insurance prove gas accumu- natural edge explosive quantity an there was “that ours.) building.” (Italics lating tunnel or basement its unthin the gas quantity that, any Company insists The Insurance since jury air, proper mixture of with explosive when combined any gas knowledge there was in that it had no to find required a dif- it; there is returning a building verdict for before mixture”; “explosive quantity” “explosive and an ference between Company’s limit- the Insurance does not instruction mixture.” discovery “explosive liability to misleading respect ¥e think the instructions erroneous coming into quantity” An of natural complained “explosive of. building,” or accumulating within the tunnel or basement its or so, quan- building, explosive if seeped into said “that said explosive mean be understood to “an mix- tities,” necessarily would building. part Under particular place, ture” basement, tunnel evidence, air of the amount of until the explosive not ex- had reached it was and an 5%, quantity per- mixed in a less present. Any plosive quantity was instructions, percentage until centage explosive. was not Under the *18 duty was im- gas in no the air had reached exceeded 5%, required to Company. Plaintiff was show posed on the Insurance gas building, base- “explosive quantity” of in the that was an there by volume) (that the Insur- or tunnel or more that ment 5% knowledge thereof. This had actual or constructive Company ance effect, and, required, in plaintiff an burden on imposed unlawful the, gas danger imminent and certain if was showing was that the knowledge gas natural ignited. that Actual or constructive accumulating building, or tunnel or was seeping into the basement duty care with the therein, imposed a to exercise commensurate dangerous commodity. managing controlling in the circumstances Company could not wait until it had actual or con- The Insurance explosive knowledge gas the amount had that structive reached more, building, in tunnel. quantity, is, that basement or 5f0 ordinary have known “If a in the exercise of care should defendant injury likely result, situation was unsafe and that some ’’ against possibility, remote he is bound to fend it. that such was a (2d) 91, City Charles, 347 Mo. of St. Guthrie v. correctly duty which the In- instructions do not state the misleading they plaintiff owed were Company
surance highly prejudicial. Company’s
Plaintiff further contends Insurance right recovery “plaintiff’s limited to said defendant’s instructions presence gas in negligence discovering in not of natural specific ‘explosive-quantities/ after such a-mixture formed and before said explosion/’ and'in Plaintiff time to have remedied said condition. says said'instructions were in direct conflict with instruc- Í, recovery No. ipsa loquitur doctrine, authorizing tion under the res if said building explosion defendant was in control of when-the occurred, requiring without proof previous seepage notice gas or'accumulation of explosive quantities, "in it from or that came building. Company replies within or without'the The Insurance plaintiff, with -the Company, proved aid of the exact Insurance explosion cause explosion and showed the cause of the beyond the control Insurance Com- Insurance pany says against Company in his instruction the Gas jury submitted and the found exact explosion.” “the cause of the Insurance further contends that evidence shows that it did liability only not create the condition and its could lienee predicated knowledge; evidence, be that, only on issue between and the Insurance was “whether or not gas building length accumulated a sufficient of time bring constructive-knowledge defendant; actual or thereof this and that specific negligence.” “that-issue was one gas causing explosion
'Whether the from the pipes, came house gas main' question or from some other source was a of fact. Whether the leaks in pipes gas main, house or the break both, either or explosion questions existed before the were of fact. gas There was also evidence that sewer could have the build entered ing; always sewer present sewers; that such is ex plosive wiped and would hav'e been explosion; out and that have of a gases. could been mixture of Under the evidence jury could found that the Insurance Company was in com plete premises, control of the situation and when and where the explosion occurred, explosion. and at and before the The evidence by plaintiff concerning offered break main and the inva premises by sion of the natural without the did -not show beyond the cause of the the control of the Company, that, being possession Insurance but control, *19 building, the Insurance should have discovered and stopped the- premises entrance of into the any evidence, source. The whole, considered as did not show the cause of the with certainty require such and definiteness as to a submission of the cause specific negligence against Insurance The real remained doubt jury. cause and was for the Pitcairn, (2d) Whitaker v. 351 Mo. 174 W. S. 168. The Company’s in limiting plaintiff’s Insurance instructions recovery to specific negligence (failure mentioned therein “that discover building, said'gas seeped so, explosive into said if quantities”) prejudicial directly erroneous and were conflicted plaintiff’s right they limited with instruction recovery loquitur doctrine. ipsa under the res Bradley the cause remanded. judgment is reversed and Osdol, CC., Van concur. foregoing opinion by C'., adopted
PER CURIAM: —The Dalton, judges All the opinion as the the court. concur. Municipal Appellant, v. Kansas Missouri, Turner, City,
Beulah Gage, Mayor City, of said Corporation, John B. Lowell R. W. O. E. M. H. Olander, Frederick
Johnson, Bixby, Dobbs, City, R. Chief Police of said Foster, Commissioners Richard L. Police Lieutenant said City, Police of said Dennison, D. 39540. 191 W. 612. City. No. Two,
Division December Rehearing January Overruled, 8, 1946. Motion or to Transfer to Banc