Appeal, No. 79, Jan. T., 1955, from judgment of Court of Common Pleas of McKean County, Oct. T., 1951, No. 64, in case of Bruce E. Helm v. South Penn Oil Company and Frank Ewing. Judgment reversed.
W. D. Gallup, with him E. G. Potter, Robert J. Healy, John E. Selden and Gallup, Potter & Gallup, for appellant.
Harold S. Hampson, with him Samuel F. Bonavita and Robert B. Apple, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Is South Penn Oil Company entitled to a judgment non obstante veredicto?
A highway known as Route 666 in Warren County runs in a northerly-southerly direction, and in the vicinity of this tragic accident it is a level straight road which has a hard surface paving of approximately 16 feet in width. The evidence in this case is unfortunately not clear with respect to a number of important
facts. However, viewing the testimony in the light most favorable to the plaintiff, the jury could have found as follows.
On the westerly side of the road is a berm of approximately 4 feet in width which falls off rather sharply a distance of approximately 3 feet into a 10 inch deep (wide? ) drainage ditch (for the highway). Defendant owns a naptha plant which is located between 200 and 300 feet west of the place where the accident occurred. A 2 inch gas line runs from the plant down toward the road. The line is made up of various joints of pipe through which natural gas is transported from the plant in an easterly direction. A wooded area begins approximately 25 feet west of the road. As the gas line emerges from the wooded area into a brush-cleared area, the pipe line becomes visible because half of it is buried and half is above ground. About 5 to 6 feet from the edge of the road, the 2 inch gas line emerges from the ground and passes over the ditch about 2 feet above the bottom of the ditch and then follows the incline of the bank toward the road; as it nears the road it enters and passes through the ground under the road.
Ewing's truck, which was proceeding along Route 666 in a northerly direction, between midnight and 2 o'clock on the somewhat foggy morning of July 1, 1949, ran off the road and over the west berm and into the ditch or brush area beyond the ditch. Ewing did not testify at the trial.
There was no evidence that the truck ever ran into or ran across or struck the gas pipe. Plaintiff testified that the right wheel of the truck was in the ditch and its left wheel was on the berm of the highway. A mechanic, who went to repair the gas line, testified that the gas line had been broken off at the elbow or swing, bent in a sort of a semi-circle, and again broken off,
pulled out of the union, which was approximately 11 feet from a connection back to the union, and the pipe was bent in a sort of semi-circle shape which would break it out of the cast iron elbow above. The evidence was so contradictory and confusing that it is very difficult, if not impossible to ascertain exactly where the break in the pipe was in proximity to the ditch or to the highway.
Ewing sought the assistance of the plaintiff (a passing automobilist) and gave him flares for the purpose of lighting the area adjacent to the damaged truck. Helm lighted several flares and as he walked with one of them near the vicinity of the broken gas pipe there was an explosion and he was "engulfed in a ball of fire." His clothing caught on fire, and he suffered burns of the hands, right arm, back, legs, hips, face and ears. The jury returned an unusual verdict, to wit, a verdict in favor of plaintiff and against the gas oil company in the sum of $17,500, but not against Ewing. However, the jury made a special or specific finding: "Do you find that Frank Ewing, (additional defendant), is liable over to defendant, South Penn Oil Company, for any damage that may be suffered by the latter as a result of your verdict?" The jury answered "Yes."
No question is or could successfully be raised as to the negligence of Ewing, the truck driver, whom the jury could have found by reasonable and legitimate inference from the evidence, had negligently driven off the road and broken the gas pipe which caused plaintiff's injuries.
The South Penn Oil Company moved for a new-trial and for judgment non obstante veredicto, both of which motions were dismissed; and a judgment was entered on the ...