Moore v. Public Service Gas Co. of North Carolina, Inc.

220 S.E.2d 817, 28 N.C. App. 333, 1976 N.C. App. LEXIS 2679

• Court: Court of Appeals of North Carolina
• Decided: January 7, 1976
• Docket: No. 7528SC533
• Status: Published

Opinion

VAUGHN, Judge.

Among other things, plaintiff alleged that defendant was negligent in: selling defective equipment, installation of the equipment, failing to make proper repairs, failing to provide proper safety devices, failing to provide proper ventilation to allow excess gas to escape and failing to make proper inspections. There was no evidence to support any of the foregoing allegations.

Plaintiff was allowed to amend the complaint to add an additional allegation of negligently failing to terminate the delivery of gas after notice of a leak.

Plaintiff presented at least some evidence in support of the foregoing allegation.

“Where a gas company, which is engaged in supplying gas to a customer’s building, becomes aware that such gas is escaping from the gas fixtures on the premises into the building, it becomes the duty of the gas company to shut off the gas supply until the further escape of gas from the fixtures can be prevented, even though the fixtures do not belong to the company and are not in its charge or custody. If the gas company continues to transfer gas to the fixtures on the premises after it learns that the gas is escaping therefrom, it does so at its own risk, and becomes liable for any injury proximately resulting from its act in so doing. Clare v. Bond County Gas Co., 356 Ill. 241, 190 N.E. 278.” Graham v. Gas Co., 231 N.C. 680, 58 S.E. 2d 757.

Whether plaintiff’s evidence is plausible is for the jury and not for the court. When plaintiff’s evidence is taken as true, as it must be on a motion for directed verdict, we believe it is sufficient to take the case to the jury.

Contributory negligence on the part of the mother will bar recovery to the extent that the recovery, if any, will inure to the benefit of the mother. Although plaintiff’s own evidence tends to disclose facts which would permit the jury to find that the negligence of the mother was a proximate cause of the death of her child, that also is a question for the jury and not the court.

It was error to direct the verdict in favor of defendant.

Reversed.

Judges Britt and Arnold concur.