Hollon v. Campton Fuel & Light Co.

105 S.W. 426, 127 Ky. 266, 1907 Ky. LEXIS 133

Opinion

Opinion of the Court by

Judge Lassing

Affirming.

Appellant’s dwelling bouse in tbe town of Campton was burned, and be instituted suit in tbe Wolfe circuit court seeking to recover of appellee damages in tbe sum of $1,000 tberefor, alleging that tbe bouse was set on. fire and burned by reason of tbe negligence and carelessness of appellee company, in this: that the company, through its agents and employes, had turned into the gas pipe which supplied gas to appellant’s house an unusual quantity of gas, thereby increasing the flames to such an extent as to cause the destruction of his home. A demurrer having been overruled, appellee denied the allegations of the petition, as amended, alleging negligence or carelessness on its part, and pleaded contributory negligence on the part of appellant. A reply traversing the plea of contributory negligence completed the pleading. A jury was impaneled and the trial proceeded with. At the close of plaintiff’s testimony, the court, on motion of defendant, peremptorily instructed the jury to find for the defendant, and because of this ruling of the trial court plaintiff prosecutes this appeal.

It is insisted on the part of appellant that the court erred in talcing the case from the jury, while, on the other hand, appellee insists that the trial court erred in overruling its demurrer to the petition. We will first consider the sufficiency of the petition. Plaintiff states in both his petition and his amended petition that he had a valve in the pipe in his dwelling by means of which he could regulate the flow of gas; the language of the petition being as follows: “In order to have gas sufficient to maintain fires and lights, the customers of said defendant company were compelled to open codes, valves, and stops to their fullest extent, and that, while said cocks, valves, and stops were so open and without notice to said consumers, the defendant company negligently turned or permitted to be turned on the flow of gas, etc.” In the amended petition this language is used: “The defendant company had, just before the burning, been supplying the plaintiff’s said house with a small quantity or volume» of gas for fuel or light, and plaintiff was compelled, in order to get even a small supply, to keep the valves in’ the house and fire places open, at least, to some extent, in order to receive any heat or light.” Thus we have in both the petition and the amended petition the allegation on the part of the plaintiff that he had within his own means in his house the- power to regulate and control the volume of gas which was supplied to his light or fire burners. So that, while the petition alleges that the defendant company, through its agents and servants, permitted an unusual volume of gas to flow through the pipes which supplied plaintiff’s house, yet we have at the same time the further allegation that the plaintiff had under his own control the means by which this supply of gas was regulated. It is therefore insisted by appellee that, even though it was guilty of negligence in permitting an unusual flow of gas into the pipes, still, unless that flow was shown to be so- heavy as to burst and destroy the pipes, thereby placing the regulation of the flow of gas beyond appellant’s control, that appellant cannot recover, for the reason that the injury is the result not of any negligence on the part of appellee in permitting an unusual flow of gas through the main, but is directly chargeable to the neglect of appellant in failing to regulate the flow of gas passing from the main into his burners. There is nothing in the pleading to show that the unnatural and unusual flow of gas which it is charged that appellee permitted to pass through its main was of such a force as tended to and did destroy the usefulness of the valve or key in appellant's house by which he was enabled to regulate the flow of gas-, and, construing the pleading most strongly against the pleader, it is ■to- be presumed that the gas in the main was not of such a pressure. Reduced to its final analysis, the petition, as amended, charged that an unusual flow of gas was permitted to pass into the main, but that it was not of such a force as destroyed the valve or means which appellant had to regulate and control the volume of gas flowing into his burners. Such allegations do not support a cause of action, and the demurrer to the petition should have been sustained.

We come next to a consideration of the question as to whether or not the court erred in taking the case from the jury. Appellant, for himself, testified that on the evening of the day upon which the house was burned somewhere about 7 o’clock he and his wife took their infant child and went to the house of a neighbor nearby to attend a dance; that, before leaving his house, he turned the valve regulating the flow of gas to the fire burners so as to permit but a small flow of gas, and in this condition left it; the flame not being over one or two inches high. Along about 11 o’clock at night the alarm of fire was given, and, upon hurrying home, he found his house on fire, and the flame from this burner rising several feet above the mouth of the burner. He made no effort at that time to turn off the valve to extinguish the flame from the burner, but devoted his energies to removing his furniture from the house. He further testified that the flow of gas was stronger at some times than- at others, and that it was especially stronger at nighttime than it was in the daytime and early evening. He proved by several of his neighbors that along about the time that the house burned, the flow of gas through the pipes in their houses was unusually strong and heavy, and one of them testified that, in order to keep the flame from setting fire to the mantel, it' had to be extinguished entirely. To this testimony, as to the condition of the flow of gas in the other houses, appellee company strongly objected, but the court overruled its objection and permitted the testimony to go to the jury! Appellant introduced a witness, Leverett, who stated: That at the time of, or just before the fire, he was in the employ of appellee company. That he was familiar with the gas business and had been for some years a “gas fitter.” That the appellee company’s line was equipped with apparatus by means of which it could regulate the pressure of the flow of the gas that passed through its pipes or lines. This apparatus consisted of a “regulator” and a “by-path.” That the reasonable and proper pressure for grates, stoves, and lamps located in the town of Campton should be- and was about eight ounces. That about an hour and a half before the fire he tested the- pressure in one of the pipes of appellee company in Another house in Campton, and found the pressure to be about four pounds. That the pressure in the pipe, if the “regulator” was left open, could reach a maximum of 1 1-2 pounds, and, if the appliance known as the “by-path” was left open the pressure would be about the same as the pressure from the well, and the well pressure was at that time something like 300 pounds. That on the morning following the fire he found the “by-path” standing open and the “regulator” was not in use, and that, therefore, the entire pressure of the gas as it flowed from the well could and did pass into the town through the mains and pipes of appellee company. That the “bypath” and the “regulator” were both located between the well and the point at which he examined the pressure, and found it to be about four pounds. Appellee also objected to the introduction of this testimony, but tbe objection was overruled, and it was permitted to go to the jury. Appellee insists tbat, before th© court could bave permitted tbe introduction of "tbe evidence to tbe effect tbat other bouses in tbe town were supplied with an unusually strong flow or pressure of gas on tbe night in question, appellant should bave been required to show tbat said bouses were located, with reference to tbe main line, practically tbe same as bis bouse was, and tbat tbe equipment for supplying and regulating tbe flow of gas to said bouses was practically tbe same. This contention, however, we think is not well taken, for tbe reason tbat in a town tbe size of Campton tbe pipe and equipment for supplying tbe several bouses therein with gas is necessarily practically tbe same, and this is especially true where all of tbe work or practically all of it is done by tbe same company, and tbe proof in this case shows tbat appellee did most, if not all, of this work. The effect of this testimony could only go to show tbat tbe flow of gas through tbe main and pipes of appellee company was at this time stronger than it bad been earlier in tbe evening of tbe same day, and testimony of this same character bad already been offered in evidence by appellant. As to tbe testimony of tbe witness Leverett, we are of opinion that bis testimony as to bis examination of tbe pressure of tbe gas in tbe pipe is not connected sufficiently close to tbe time of tbe fire to entitle it to any weight or consideration, nor is bis testimony as to the condition in which be found tbe “by-path” and “regulator” tbe following morning such tbat it should bave been permitted to go to the jury, for tbe reason that their condition tbe morning following tbe fire is no evidence as to tbe condition in which they were at tbe time of tbe fire, and, in fact, bis own testimony shows conclusively, if it shows anything, that at the time he made the test or examination the “regulator” and “by-path” both could not have been open else the pressure would have been nearer 300 pounds than 4 pounds. The sum total, then, of appellant’s testimony, is that before leaving home, he turned the valve in his gas pipe down so as to permit the flow of but a small volume of gas; that at about the time the fire was discovered the pressure of the gas in the pipes in neighboring houses was found to be very strong, but not of sufficient force to place it beyond the regulation and control of the appliances with which the pipes in each of said housese were supplied; that, when appellant entered his home after the fire was discovered, the flames from his own gas pipe were rising several feet above the burner. Had appellant extinguished the light entirely in his gas burner before leaving home, no injury could have possibly occurred or loss’ resulted to him. Appellee company had no control over the pipes or valves in appellant’s house, nor over the apparatus which regulated the supply of gas to the fire burners. These were all under the exclusive control and management of appellant. He knew" how to operate same. He knew that the pressure of the gas through the main varied, and that late in the evening it was stronger than at other times, and in the full possession of this knowledge, before leaving home, he attempted to so arrange the valve as to keep but a small fire during his absence. With the fire in this condition, he left his home, and he offers no testimony as to what took place between that time and the time when his home was discovered on fire. The natural presumption from his testimony is that the house, caught fire from the burning gas, but this is by no means certain. It might have been set on fire. It may have been entered during his absence, and the valve turned on so as to permit a full flow and pressure of gas through the pipe, or the valve may have been out of order, so that it was not suitable to regulate the flow and pressure of the gas. Any or all of these theories are as plausible as that the fire was caused by the gas company’s negligently permitting an unusual and excessive flow of gas through the pipe, and, as has been held in the case of the Louisville Gas Company v. Kaufman, Strauss & Co., 48 S. W. 434, 20 Ky. Law Rep. 1069: “"Where the question is one of negligence or no negligence, it is well settled law that where the evidence is equally consistent with either view — the existence or non-existence of negligence — the court should not submit the case to the jury, for the party affirming the negligence has failed to prove it.” This same rule was laid down in the case of Hughes v. Cincinnati Railway Company, 91 Ky. 526, 16 S. W. 275, 13 Ky. Law Rep. 72, where the court held that if the evidence shows that the injury might have resulted from one or two or more causes, only one of which was due to defendant’s negligence, and 'the inference that the injury resulted from the one cause is no 'stronger than that it resulted from the other, the plaintiff has failed to make out his ease, and the jury should have been so directed. And in the case of Wintuska v. L. & N. R. R. Company, 20 S. W. 819, 14 Ky. Law Rep. 579, the court held that, where either one of two causes was equally plausible, a peremptory instruction should have been given, and the jury should not Eav.e been left to speculate as to the cause of the injury. So, in the case at bar, the fire may have resulted from negligence on the part of appellee in permitting an unusually heavy flow of gas to pass through its mains, or it may have been the work of an incendiary, or it may have been due to the carelessness and neglect of appellant in not prop*erly setting the valve so as to regulate the flow of the gas and prevent an injury during his absence. Any one of these theories being as plausible as the other, the jury should not have been left to speculate as to the cause of the fire.

Judgment affirmed.