164 Ky. 29 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
Tbe appellant was tbe plaintiff below, and sued to recover damages for tbe loss of bis borne and contents resulting, as be alleged, from an explosion of natural gas. Tbe appellee supplied tbe gas, and operated under a city ordinance, by tbe terms of wbicb it furnished to patrons, without charge, a meter for measuring the gas consumed. Tbe ordinance further required that all meters, mains, pipes, and appendages shall be of tbe most .modern, approved and accurate kind and construction. It is further provided that all meters shall be subject to a reasonable system of inspection to be provided by ordinance ; but the ■ city never adopted any, ordinance regu- . lating inspection.
The ground of recovery was the alleged carelessness1 and negligence of the company in furnishing and suffering the meter to he in a leaky, unsafe, dangerous and defective condition, and that its defective condition was well known to the company, or by the exercise of proper care it might have been known to the company.
It is alleged that by reason of the defective condition of the meter natural gas was permitted to leak and escape into the basement of the residence in such quantities that by coming in contact with the fire in the furnace, also situated in the basement, the gas exploded and the residence was wrecked, and the household furniture ruined to his damage in the sum of $6,000. It is not disputed that the home and furniture were practically destroyed by an explosion of gas, and that appellant was damaged in the sum claimed. The damage came solely from the explosion, as no fire followed it. In order to recover it was incumbent upon him to show that the explosion was from natural gas, and that it leaked from the meter by reason of a defect which was known, or by the exercise of proper care could have been known, by appellee.
The home was a two-story brick, covering a basement 8 feet high and extending with the house dimensions. About the middle of the basement was situated a furnace for heating the house by hot air. At one side of the basement the meter was’ fastened on a shelf. On the other side there seems to have been an accumulation of gas of some kind which leaked from some place, and when it exploded the floor over the basement was torn up and the east and west walls of the house were thrown out, leaving the roof supported by the north and south walls. The explosion occurred about midnight of October 31st. Some time during the day a fire was started in the furnace, and this was the first time the house had been heated that season. The appellant, when he came home that night at 11 o’clock, did not go into the basement to see about the furnace, for he did not know a fire had been started. He went to his room, lighted-the gas, retired and had been asleep for an hour when the
Appellant’s expert says he scratched on the meter a mark to locate the place of the leak, and for identification made another scratch on it and made a memorandum of the manufacturer’s numbers. The meter was then delivered into-the possession of the gas company, where it was retained until the day of the trial. In testifying before the jury the expert identified the meter but was unable to locate the leak, although he took time during the trial to make tests for that purpose. If the meter had been repaired — that is, resoldered — after it ¿came into the hands of the gas company, the expert could not locate the place or demonstrate the fact. In fact, there was no testimony as to any change in condition after the meter went out of the hands of the expert except his insistence that.after he had expanded the sides of it, he detected a leak, and on the trial of the case he could not.locate it. Moreover, we do not believe that
Appellant cites the cáse of Hartman v. Citizens Natural Gas Company, 210 Pa., 19,-where a gas company was held liable for damages by reason of gas-escaping and exploding, when it knew, or by. the exercise of. ordinary care should have known, of. the defects in its pipes or mains. In that case,- and,, in fact, in every one to which our attention, has been called, there-was evi7 dence of a defect in the. pipes or mains, or some part of the equipment which the gas company , was under duty of maintaining-and repairing, ,or there .was. evidence o! negligence on the. part of the: company or its servantt with reference to such duty.
In Louisville Gas Company v. Guetenkuntz, 82 Ky., 433, the company was held liable for the explosion caused by its servants negligently leaving a key in the service pipe valve, and likely to be meddled with by thoughtless persons.
In Louisville Gas Company v. Frye, 147 Ky., 754, the company was held liable because it had knowledge that the pipe was leaking and took no steps to remedy the trouble.
Appellant places special emphasis on the case of Smith v. Boston Gas Company, 129 Mass., 318. A mother ■and child occupied the same room and bed. Next morning the door of the room was broken open and the mother found dead and the child insensible by her side. Escaping gas caused the trouble. While there were no gas pipes or fittings in the room, there was proof that the gas escaped from a broken pipe laid by the company through the street adjacent to the room. None of these eases support the theory of appellant, because there was proof of defective pipes or fittings, or of lack of proper care by the company or its servants. The mere fact of an explosion does not raise a presumption of negligence or make out a prima facie case against the company. We think the rule is well settled in the case of Sipple v. Laclede Gas Company, 102 S. W. (Mo.), 608, where it was held:
“In an action against a gas company for injury occasioned by escaping gas, prima facie proof of negligence is made by showing a break or leak in the main or the consequent escaping of gas operating proximately to cause the loss.”
In the case at bar there is no proof of any break or leak in the mains. The proof that there ever was a leak in the meter is very unsatisfactory, and such leak as was {testified to was only discovered after two weeks’ test, and then by such a change in the condition of the meter rls to indicate that the changed condition of the meter caused the leak.
“When the question is one of negligence or no negligence, it is well settled law that when the evidence is equally consistent with either view, the existence or nonexistence, the court should not submit the case to the jury, for the party affirming negligence has failed to prove it.” Louisville Gas Co. v. Kaufman, Strauss & Co., 105 Ky., 131; Hollon v. Compton F. & L. Co., 127 Ky., 266; Hughes v. Cin., N. O. & T. P. Rd., 91 Ky., 526; Tollins v. Terrell, 133 Ky., 210; Thomas Admr. v. Eminence Dis. Co., 151 Ky., 29; Wood v. Cumberland Tel.
In tbis ease no one can say whose negligence caused the explosion, if, in fact, it was caused by the negligence of anyone.
We have reached the conclusion that the court properly directed the jury to find for appellee, and the judgment is, therefore, affirmed.