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WILLIAM T. EVANS AND SANDRA EVANS v. PAUL L. THOMAS AND EARL A. THOMAS (09/10/82)

filed: September 10, 1982.

WILLIAM T. EVANS AND SANDRA EVANS, HUSBAND AND WIFE, APPELLANTS,
v.
PAUL L. THOMAS AND EARL A. THOMAS, INDIVIDUALLY AND AS CO-PARTNERS, TRADING AS THOMAS BROTHERS NATURAL GAS COMPANY



No. 2390 October Term, 1979, Appeal from the Judgment Nunc Pro Tunc entered 3/29/82, Court of Common Pleas of Carbon County, Civil Division, at No. 124 April Term, 1975

COUNSEL

Edward F. Silva, Philadelphia, for appellants.

William G. Ross, Bethlehem, for appellees.

Brosky, Hoffman and Cirillo,*fn* JJ.

Author: Brosky

[ 304 Pa. Super. Page 340]

The appellants, William and Sandra Evans, brought a cause of action against the appellees, Paul and Earl Thomas individually and as co-partners trading as Thomas Brothers Natural Gas Company, concerning a tumultuous explosion that took place in their residence, when William Evans struck a match to relight an extinguished pilot light in a propane gas hot water heater. As a result of the explosion, William Evans was severely burned. The Evanses contend that the explosion occurred as the result of the Thomases defective product. They assert their claim pursuant to Section 402(a) of the Restatement of Torts, Second. The jury awarded the verdict to the Thomases. The Evanses moved for a new trial. They appeal from the denial of that motion.*fn1

The Evanses assert that the verdict was against the weight of the evidence and that the trial court erred "in allowing . . . [Paul] Thomas to render an opinion based on the hypothetical questions posed by . . . [Thomas'] counsel and in refusing to strike the opinion testimony of [Paul] Thomas" (Appellants' brief at page 3). We affirm.

In Antolik v. Kerstetter, 278 Pa. Super. 55, 56, 419 A.2d 1353, 1353 (1980), we said:

[ 304 Pa. Super. Page 341]

Although the province of this court is generally limited with respect to the facts to a determination of whether there is evidence to support the verdict, we may grant a new trial on the grounds that the verdict is against the weight of the evidence if the jury's verdict is so contrary to the evidence as to shock one's sense of justice. Albert v. Alter, 252 Pa. Super. 203, 381 A.2d 459 (1977) (allocatur refused) and the other cases therein cited.

The facts involved in this case are as follows. Sandra Evans testified that in June of 1973, the Evanses decided to use a heater which could employ propane gas to heat their water. In August, she called the Thomases in order to purchase propane gas. A tank of gas was delivered on August 4 and placed outside their cellar door, underneath a porch. On August 7, William Evans, using the instructions provided by the Thomases, lit the pilot light on the heater which was housed in their cellar. The couple had hot water for several hours. However, the heater eventually stopped working. Later that day, at about 5 p. m., William Evans attempted to relight the heater, again using the instructions provided by the Thomases. An explosion resulted from Mr. Evans' efforts. He was severely injured. Mrs. Evans, who was on the first floor of the house, was also injured, though not seriously.

The record discloses that the essence of the Evans' argument was that the gas was inherently dangerous and that as such the Thomases were obliged to take reasonable steps to protect the buyer, specifically, that the gas should have been and was not odorized. Thomases argues that the gas was odorized.*fn2

[ 304 Pa. Super. Page 342]

William Evans testified that when he went to relight the pilot light on the hot water heater that he did not smell any odor. Other witnesses were presented by the Evanses who indicated that at or near the time of the incident, that they had smelled no gas odor. The Evanses argued ...


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