Southwestern Gas & Electric Co. v. Cobb

LEVY, J. (after stating the facts as above). [1] It is not apparent from the record whether or not the court sustained the appellant’s demurrer to the plaintiff’s supplemental petition. But assuming that the court did overrule the demurrer, there was no error, it is concluded, in so doing. For if the contract set up in the appellant’s answer was, as alleged in the supplemental petition, obtained in point of. fact by duress and was without consideration to plaintiff, she would be legally entitled to allege and prove such facts in avoidance. The first assigned error is overruled. [2] The peremptory instruction requested by appellant was, it is believed, properly re *1117 fused, by tbe court. Tbe pipe which supplied appellee’s apartment witb gas entered tbe basement of tbe building from tbe street and connected by an elbow to a pipe going upward through an air shaft in tbe wall to tbe second story, and tben through a bole into tbe room, and there connecting to a meter. Tbe testimony for appellee goes to show that tbe employés of appellant in removing tbe gas meter broke tbe pipe which led upward from the basement, and thereby allowed gas to escape into tbe building, which, from some cause, became ignited and caused tbe explosion. The fact of explosion and the extent of it, and that the gas escaped from a broken pipe, was undisputed. The pipe was broken three or four inches above tbe elbow, and it was shown that the break was a complete and fresh one. The pipe was old and very much rusted, but without a considerable strain on it, as testified, it would not have broken. The employs in taking the meter out unscrewed the nut in the union of the pipe, and then with a monkey-wrench screwed the nut on the pipe. It was shown that a person could tell and would know when a pipe breaks while screwing a nut or shut-off on it. And there is evidence tending to show that the pipe was broken by the employés who took the meter out, and that they must at the time have known that they broke it; and such evidence was sufficient to authorize the jury to find that the breaking of the pipe resulted from negligence. And if the contract offered in evidence by appellant should be regarded as offered against the plaintiff, then there is nothing, it is concluded, in the terms of the contract that would relieve the appellant from the consequences of the special negligence averred as resulting in her injury. The evidence for plaintiff, it is held, makes a jury question. It is believed that the evidence warrants the findings of fact by the jury, and the sixth assignment of error is overruled. [3] The other assignments of error may not be reviewed, it is concluded, because no exceptions were reserved. Railway Co. v. Cody, 92 Tex. 632, 51 S. W. 329. The Acts of the Thirty-Fifth Legislature, p. 389 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), had not taken effect at the time of the trial. Judgment affirmed. Footnotes [1] cgc^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes