Swann v. United Cities Gas Co., 266 N.C. 132 (1966)

Jan. 14, 1966 · Supreme Court of North Carolina

266 N.C. 132

ZEB V. SWANN and Wife, ELIZABETH SWANN v. UNITED CITIES GAS COMPANY, a Corporation, and DUKE POWER COMPANY, a Corporation.

(Filed 14 January, 1966.)

Appeals by defendants from Clarkson, J., May-June 1965 Regular Session of HENDERSON.

Plaintiffs instituted this action to recover damages for the destruction, by fire and explosion, of certain laundromat equipment owned by them and located in a building which they rented, and for loss of profits during the period in which they were unable to operate .their business as a result of such firé and explosion. They allege that the fire and explosion resulted when an electric spark ignited natural gas which had escaped into the building; that the defendant Gas Company was negligent in permitting such gas to escape into the building; that the defendant Power Company was negligent in introducing electricity into the wiring system within the building when it knew, or should have known, that such wiring was not properly insulated so as to create a dangerous condition and that the electric spark which ignited the gas resulted from such negligence of the Power Company; that the negligence of the defendants concurred; and that the negligence of each was a proximate cause of the damage. Each defendant, in its answer, denies negligence by it and pleads contributory negligence by the plaintiffs. The jury found for the plaintiffs upon the issues of negligence and contributory negligence and found that their damages were $35,400 for destruction of their property and $3,350 for loss of profits. From a judgment in accordance with the verdict both defendants appeal.

Prince, Jackson, Youngblood & Massagee for defendant appellant United Cities Gas Company.

William I. Ward, Jr., Whitmire & Whitmire, Carl Horn, Jr., Harold D. Coley, Jr., for Duke Power Company.

Redden, Redden & Redden for plaintiff appellees.

LAKE, J.

This is a companion suit to the case of Keith v. Gas Company, et al, 266 N.C. 119, 146 S.E. 2d 17. In all respects material to the appeals the pleadings in the two cases are identical. The cases were consolidated for trial. The evidence, except as to the amount of damages sustained by the respective plaintiffs, as to which there is no question raised by the appeals, is the same. In each case the defendant made joint assignments of error and these are the same in each case. Reference is, therefore, made to our opinion in the Keith case for a detailed discussion of the pleadings, the evidence, the assignments of error and the grounds upon which we rest our decision.

For the reasons there stated, the court below erred in denying the motion of the defendant Gas Company in this action for a judgment as of nonsuit and in permitting witnesses for the plaintiffs, found by the court to be experts, to testify in response to certain hypothetical questions, by reason of which error a new trial must be granted as to the defendant Power Company.

Reversed as to the defendant United Cities Gas Company.

New trial as to the defendant Duke Power Company.