Appeal from the Circuit Court of Cook County; the Hon. L.L.
WINN, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 8, 1963.
This is an action brought in the Circuit Court of Cook County by Mabel Peterson to recover damages for personal injuries and by American National Bank & Trust Company, administrator of the estate of Anthony Peterson, to recover damages for the wrongful death of Anthony, Mrs. Peterson's son. The injuries and death were caused by an explosion and fire resulting from a gas main leak. Named defendants were the Peoples Gas Light and Coke Company, owner of the gas main, the Chicago Land Clearance Commission, owner of the property at 2933 and 2937 South Michigan Avenue, J. & K. Wrecking Co., which was engaged in demolishing the buildings on the Commission's land, and Anna V. Skarphs, owner of the apartment building Mrs. Peterson and her son were visiting when the explosion occurred. At the close of plaintiffs' case, the court directed a verdict for defendant Skarphs and no question is raised as to that ruling. After defendant Peoples Gas had rested, but before the case was submitted to the jury, it entered into a settlement agreement with plaintiffs whereby it paid Mrs. Peterson the sum of $120,000, and the administrator the sum of $10,000. The causes were then dismissed as to this defendant. At the close of all evidence, the Court refused the remaining defendants' requests for directed verdicts and the jury returned verdicts finding both guilty. Damages were assessed at $30,000 for Mrs. Peterson and $20,000 for the administrator. The usual post trial motions were denied and defendants appeal *fn1 from the judgments entered on the above mentioned verdicts.
On March 10, 1959, around 3:00 p.m., Mrs. Peterson and her son visited her friend Mrs. Brown at the latter's basement apartment at 2929 South Michigan Avenue. As Mrs. Peterson entered the apartment she said she smelled gas and noticed two gas men leaving the apartment. About fifteen minutes later, while the occupants of the apartment were watching television, an explosion occurred, setting the apartment on fire and Mrs. Peterson and Anthony were severely burned. Anthony died five days later.
The events leading to the explosion and fire are as follows. The Commission had acquired the properties at 2933 and 2937 and contracted with J. & K. for the wrecking of the buildings located on the property (two and two and one-half story dwellings). On December 29, 1958, the Commission notified Peoples Gas that the two buildings were vacant and being readied for wrecking and that the gas service should be shut off beyond the building line. Gas service to the building at 2933 was via a twenty-inch pipe laid underground slightly to the west of the center line of Michigan Avenue. From the twenty-inch pipe a one and one-quarter inch copper pipe, encased in a protective one and one-half inch steel pipe carried gas to the building. These pipes entered the basement of the building at 2933 about one foot above the basement wall and protruded about six inches from the wall. A transit sleeve encased the gas pipe where it passed through the basement wall thereby protecting the pipe from the wall's weight.
On January 1, 1959, a Peoples Gas service man went to the building at 2933 and locked off the gas meter in the basement. The following day this employee returned with a co-employee and the two of them removed the meter and five foot stand pipe. This left the service pipe protruding six inches from the wall capped with a "T" pipe. These employees had with them a directive from the company to "cut off service at the front wall, get the Street Department to cut off at the main." Later in January, another employee of the gas company went to the building and removed the "T" and inserted what is designated a "Griffith stopper," a temporary cutoff. The "Griffith stopper" was inserted twelve feet into the service pipe by means of two six feet extension rods. This was the last work done on the gas lines in this area until the day of the explosion. When the explosion occurred, the gas service had not been cut off at the main.
After signing the contract with the Commission, J. & K. commenced wrecking operations some time in February, demolishing the building at 2937 first. At the time of the explosion, only a portion of the north wall at 2933 remained standing. This wall was adjacent to the building at 2929. A tractor was used to load the truck with scrap and rubble, to level the area, and to tear down portions of walls, by means of a cable but most of the demolition work was done by hand.
The following is a brief summary of the events on the day of the explosion. At 9:00 a.m., a Miss Clayton, who lived at 2929, left her apartment and noticed the tractor was operating at 2933. She did not smell any gas. About the same time, James Craig, an inspector for the Commission, arrived to check on the progress of the demolition. He also noticed the tractor in operation but did not smell any gas. Edward Kopaz, son of J. & K.'s president, testified that he had arrived at the 2933 site around 8:30 a.m. and while walking around the area, he noticed an odor of gas. He could not state the time when the odor first became apparent. He did nothing until Mr. Velco, J. & K.'s secretary, arrived around 10:00 a.m. Velco ascertained that the odor was gas and he went to a nearby filling station to call the gas company and inform them of the odor. Velco stated he placed the call at 10:30, but the operator who received the call said it was not made until 12:00 noon.
After receiving the call from Velco, the gas company operator notified a Mr. Tash, a special service man who investigates gas leaks. Tash said he received the call at 12:15 and arrived at 2933 at 12:35. He confirmed that the odor was that of gas escaping from one of his company's lines and he contacted a work gang in order to dig up Michigan Avenue and cut off the gas at the main. All parties agreed that the odor of gas emanated from the northwest corner of the lot at 2933, about twenty feet from the building at 2929. Tash testified that he saw the wrecking company employees and that the tractor was in operation, pulling concrete with a chain.
When Michael McDonagh, foreman of the work gang, arrived at 1:15, he had with him an M-scope, which is used to trace underground metals. He was able to locate the service pipe with the M-scope, but lost the trace when he tried to follow it away from the main underneath Michigan Avenue. Although there is some conflicting evidence, it appears that the service line leading to the building at 2933 (which had been plugged with the "Griffith stopper" by the gas company) had been dislodged and that this was the source of the gas leak.
After the work gang secured a compressor they commenced digging up Michigan Avenue. This was around 2:00 p.m. Before they were able to effect a cutoff, the explosion occurred. This was between 3:00 and 3:15.
Defendants contend the trial judge should have allowed either their motion for a directed verdict or for judgment notwithstanding the verdict. Defendants request that the judgments entered below be reversed and judgments in their favor be entered here, or that the cause be remanded to the trial court with directions to enter judgments in their favor, or that a new trial be granted.
In considering the questions relating to the motions for directed verdicts at the close of all the evidence and for judgments notwithstanding the verdict, the court must consider the evidence with all reasonable inferences arising therefrom in favor of plaintiff. Gray v. Terminal R. Ass'n of St. Louis, 37 Ill. App.2d 376, 185 N.E.2d 700. The sole question on this appeal is whether there is any evidence, which, taken in its aspects most favorable to the plaintiffs, proved or tended to prove the cause of action. Moss v. Wagner, 27 Ill.2d 551, 190 N.E.2d 305.
With these rules in mind, we will summarize the salient pertinent evidence most favorable to plaintiffs. Before the demolition work commenced, the gas company removed the gas meter from the building at 2933 and inserted a temporary stopper in the service line although customary procedure was to cut the gas off at the main when a building was to be demolished. The stopper was of a type used during cold months when the ground is hard. When warmer weather arrives, the cutoff is made at the main. Even though it was temporary, there is no evidence that the stopper used did not effectively seal off the pipe. The gas company did no further work until the day of the accident. After the gas company stopped up the service line there remained but six inches of pipe protruding from the basement wall. This pipe could not be dislodged by hand, but rather, required use of heavy machinery or a heavy truck. The only party having the necessary equipment or truck at the site was defendant J. & K. The pipe was dislodged, resulting in a gas leak. *fn2 This in turn caused the explosion and fire.
Defendants contend that they had no authority to sever the gas service pipe at the gas main and therefore no duty to do so. They admit that "there is testimony that on the day of the occurrence that part of the service pipe which had extended from beneath the sidewalk at 2933 had been removed." They argue that when or by whom it was removed, the record is silent. Plaintiffs contend, and we agree, that there are sufficient facts and circumstances to support an inference that defendant J. & K. dislodged the service pipe either by accident or by design.
Defendants rely upon Kelley v. Public Service Co. of Northern Ill., 300 Ill. App. 354, 362, 21 N.E.2d 43, and other cases which hold that, "[a] theory cannot be said to be established by circumstantial evidence unless the facts are of such nature and so related as to make it the only conclusion that could reasonably be drawn." Defendants then assert, rightly, that inferences that persons other than defendants dislodged the service pipe and caused the gas leak could reasonably be drawn from the facts adduced at trial. This is true. However, it is for the jury to determine which inference it will draw from circumstantial evidence. Cardona v. Toczydlowski, 35 Ill. App.2d 11, 180 N.E.2d 709.
Moreover, cases decided by the Supreme Court since the Keeley decision have recognized that facts may support more than one inference and the jury, in determining liability, is allowed to draw inferences judges do not feel are the most reasonable. In Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847, a mother purchased a vaporizer and while it was in use in her child's room, a fire started causing severe burns to the fourteen-month-old child. Suit was then brought against the manufacturer and seller of the vaporizer, alleging that the vaporizer was defective and that the defect caused the fire. Although there were no eyewitnesses to the fire (other than the fourteen-month-old child), the jury returned a verdict in favor of plaintiff and the Supreme Court affirmed the judgment. In Lindroth, as here, defendants argued strenuously that there were no eyewitnesses to the occurrence and no direct evidence of negligence on their part, and that the fire could have resulted from other causes. The Supreme Court answered this argument by stating:
There is considerable argument over evidence in the record tending to show that the fire might have been caused by other agencies than the vaporizer. This court, of course, on the contention here in issue, is not concerned with the weight of the credibility of the evidence, but only with the narrow question whether there is any evidence, together with all reasonable inferences to be drawn therefrom, which would justify submission of the case to the jury. . . . The key point of the controversy, is appellants' contention that the fact of defect must be proved before it may be inferred that such defect caused the fire and the injury complained of. There being no eyewitnesses, the determination of this contention must be found in the circumstances revealed by the evidence, if at all. . . . The inquiry here is whether the result reached below was one which is reasonable on the facts in evidence, not whether other conclusions might also have been reached. 407 Ill at 130, 131, 134.
The Supreme Court then quoted with approval the following language from Lavender v. Kurn, 327 U.S. 645:
Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.
The facts and circumstances here constitute a reasonable basis for the jury's conclusion that the defendants removed the service pipe and that this proximately cause the explosion and fire. This conclusion was apparently more probable to the jury than that the pipe may have been removed by some imaginary person without any heavy equipment. If, as in Lindroth, the jury can infer that the product was defective and that the defect caused the fire, then the jury here was warranted in inferring that defendants dislodged the service line and thereby caused the leak which resulted in the explosion and fire.
Defendants point out that while J. & K. was entitled to all scrap material at the site, this did not include the gas pipe. The fact that defendants were not entitled to remove the gas pipe does not prevent the jury from inferring that it was more probable and reasonable that J. & K. ...