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The Lebanon Light, Heat and Power Company et al. v. Leap.

pipe, as described, upon the public highway, and in transporting through such pipe, as so constructed, natural gas at the dangerous pressure of three hundred pounds to the square inch. We think the charge is fully sustained by the evidence.

That the pipe was carelessly put together is evident from the numerous leaks, in addition to the one at the crossing, which are testified to. It was additional negligence to lay such a poorly jointed pipe, containing such a dangerous explosive, loose upon the ground, where the public, including children and other inexperi enced persons, were passing day after day. Besides all this, it was a violation of the law to lay pipe upon the public highway. Whatever may be said as to the right to lay gas pipe, or other pipe, in covered trenches along the highway, after due permission obtained from proper authority, and so laid as not in any manner to obstruct the highway or endanger public travel, there can be no question that it is unlawful to occupy the surface of the highway as done in this case. The public roads, free from any obstructions to travel, are solely, and from fence to fence, for the use of the traveling public.

Ohio, etc., R. W. Co. v. Trowbridge, 126 Ind. 391; Elliott Roads and Streets, chapter 24.

And we think that the jury were fully authorized, from the evidence, in finding, as they did by their general verdict, that this negligence attached to all the appel lants.

Snow actually put the pipe together and laid it in the highway. Doxey furnished him with the pipe and the fittings and located the several wells; and his agents took up the north and south line, cutting and unscrewing the second joint from the first at the crossing. The accident happened after this, and after Snow had ceased to use the pipe, which then belonged solely to Doxey. Doxey

The Lebanon Light. Heat and Power Company et al. v. Leap.

thereafter must be held to have assumed Snow's former charge of caring for the pipe; and he did, in fact, afterwards bury this line of pipe in the highway, using it as a part of the permanent line to Lebanon.

And from the fact that, a month before the accident, gas was delivered to the city of Lebanon from well number one, which, by the pipe passing the crossing, was directly connected with well number three, the jury were amply justified in finding that the gas flowing through this pipe from well number three was taken along with the gas from number one, to be distributed by the appellant company to its patrons in the city.

It does not appear from the evidence, that any other use could be made of the gas; for Snow had ceased to use it before the north and south line was taken up, and two weeks before the date of the accident.

If this inference of the jury, that the company was in the actual use of the gas that flowed over the crossing at the date of the accident, were incorrect, it was the duty of the appellant company to show that fact, and, by introducing upon the trial its contract with Doxey, or by other competent evidence to prove the absence of liability on its part. The evidence adduced makes a prima facie case against the company.

As said by Mr. Broom, Legal Max. 939, "Where a party has the means in his power of rebutting and explaining the evidence adduced against him, if it does not tend to the truth, the omission to do so furnishes a strong inference against him."

Notwithstanding, therefore, the fact that Doxey had not at the time fully completed his contract, nor formally turned over the plant to the company, yet the company, being in the actual use of the gas which flowed through the pipe over the crossing, can not escape liability for the negligent manner in which the gas was

The Lebanon Light, Heat and Power Company et al. v. Leap.

conveyed through the pipe thus carelessly constructed along the public highway.

The other question, as to the liability of the appellee, and whether he was himself guilty of negligence contributing to his injury, is one not free from difficulty.

In the complaint it is alleged that "plaintiff was on and prior to the 20th day of September, 1890, a strong, active, intelligent and energetic young man, eighteen years of age, in good health, and in full possession of all his faculties."

It is further alleged, "that on the said 20th day of September, 1890, the plaintiff, who was a young man eighteen years old, as aforesaid, and who was passing by said public road crossing, and said pipe line, as aforesaid, and who stopped to look at said escaping and burning gas, and had but little knowledge and comprehension of the dangers of handling, using, and transporting natural gas, was in said highway at or near the point where this joint of pipe intersected with said line, and was at or near the north end of said pipe, and was standing there looking at said escaping and burning gas, and that without fault or want of care on his part, and on account of said negligence and carelessness of said defendants, the said joint of pipe was blown out, etc.," causing the injury complained of.

While, therefore, the appellee was in the full possession of his strength and faculties, it does not appear from these allegations that on the occasion of his injury he was himself guilty of any negligence. He was at the time on the public highway, where he had a right to be. Whether he walked, or rode in a wagon at the invitation of his neighbor, or whether he stood talking with an acquaintance and watching the gas pipe or any other object, was an affair that concerned himself alone, so long as he did not interfere with the equal right of

The Lebanon Light, Heat and Power Company et al. v. Leap.

any one else to use the highway. Least of all have the appellants, who had placed an unlawful obstruction upon the highway, a right to complain of his presence.

If, however, it should appear that the appellee were aware of the dangerous character of the obstruction thus placed upon the highway, and notwithstanding such knowledge, should persist in standing in the immediate presence of the danger, and, still more, if he should, in any manner, either by his own act or by suggestion to another, have aided in liberating the dangerous explosive, he could not recover for an injury thus brought about.

It appears from the evidence, that the appellee lived near the crossing, and within a mile of the town of Sheridan, for fifteen years prior to the accident; and that for four or five years previous to that time gas wells were put down in and around that town. The appellee had been present a few times at the drilling of the first well in Sheridan, also when they fired the second well. He also knew of the use of gas for fuel in Sheridan, Noblesville, and other points in Hamilton county, prior to the drilling of the wells for the Lebanon Company. He was also present at the drilling and firing of these wells, and knew that gas was piped around from well number one to well number two. He saw the size of the flames from the wells and heard the noise. He had been warned by his father not to light the gas at any of the leaks. Parties of young people with whom he joined had been in the habit, particularly on Sunday evenings, of congregating at the crossing, lighting the gas, and watching it burn. Appellee says he did not himself light the gas or touch the pipe. On these occasions he saw the end of the joint of pipe raised up and let down several times, sometimes when the gas was lit and sometimes when it was not.

On the Monday night previous to the accident, he and

The Lebanon Light, Heat and Power Company et al. v. Leap.

his father were with the charivari party at the crossing. He saw the gas lit and the pipe raised up that evening. The fire blazed up two feet or more. He heard his father say at the time, "Boys, I would not do that," and they laid the pipe down.

On the day of the accident, when talking to the boy Griffin, he said to him: "If the plug was took out and it was lifted up it would make a nice fire.” On that occasion he noticed the fire stronger than usual, and that the earth near it was burned red, like tile. When he told Griffin about taking out the plug and lifting up the pipe, Griffin said, what plug? and they both walked around to the end of the pipe and he showed Griffin the plug, when Griffin stooped down and lifted up the pipe. Appellee was then standing on one side of the pipe and Griffin on the other, and appellee noticed Griffin turn to look at the fire as he raised the pipe; appellee, at the same time, observed the fire himself. plosion took place.

Then the ex

The appellee does not appear, at the time, to have himself touched the pipe; and, for this reason, perhaps, the jury did not think that he was guilty of contributory negligence. Considering the evidence adduced, it seems very doubtful whether this conclusion was correct.

As bearing on this question, the following, with other instructions given the jury, is complained of:

"7th. On the subject of contributory negligence, the question for your consideration is, whether the plaintiff himself was in fault in any act he did or caused to be done at the time of the accident, if any such act has been proved, which contributed to the injuries sustained by him. Anything any other persons may have done then and there or at any other time independently of himself and for which he was not responsible, or anything he may have done himself at any other time or place in


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