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2. GAS @:17 – GAS COMPANIES – RIGHTS IN STREETS-‘‘ORDINARY CARE.” Where a contract between a turnpike company...and a gas company, granting the latter the right to lay pipes in the turnpike, provided that the gas company should keep the pipes in proper condition, and so as not to interfere with ordinary travel, such condition of the contract meant that the gas company undertook to exercise ordinary care to keep and maintain its mains so as to have the road from day to day in Such condition that it would be reasonably safe, considering the usage and travel which it might be reasonably anticipated it would be subjected to from day to day; “ordinary care” to maintain a place or thing in safe condition under Such a state of facts being a variable and not a stationary degree of care. [Ed. Note.—For other cases, see Gas, Cent. Dig. § 14; Dec. Dig. G->17. For other definitions, see Words and Phrases, First and Second Series, Ordinary Care.]

3. GAS @:18—GAS CoMPANIES—RIGHTS IN STREETS—DUTY OF CARE. Where a gas company occupies a public Street with its main, whether such street be owned by a turnpike company or be a public highway, such gas company, whether under contract with the turnpike company or its implied obligation to the public, is under duty to maintain its main in such manner as to have the road reasonably safe from day to day, considering the usage to which it may reasonably be subjected. [Ed. Note.—For other cases, see Gas, Dec. Dig. Q:18.]

4. GAS @:16 — GAS COMPANIES – RIGHTS IN STREETS—DUTY OF CARE-CONTRACT WITH TURNPIKE COMPANY. A turnpike company, giving a gas company the right to use a road to lay its mains, cannot, by contract with Such company, authorize it to exercise a less degree of care than is consistent with the right of the public to use the road with reasonable safety, [Ed. Note.—For other cases, see Gas, Cent. Dig. § 13; Dec. Dig. 3:16.] 5. GAS @:18 – INJURIES - NEGLIGENCE PROXIMATE CAUSE. To render a gas company liable for an explosion of gas from a broken main, the injury must have been the natural and probable consequence of the negligent act; a consequence that, in the light of attending circumstances, an ordinarily prudent man might have anticipated. [Ed. Note.—For other cases, see Gas, Dec. Dig. 3:18.] 6. GAS @:20—INJURIES-NEGLIGENCE—QUESTION FOR JURY. In an action against a gas company for injuries received by plaintiff operator of a steam roller for a county in road repairing, when the spikes of the machine's rear wheels pierced a gas main resulting in an explosion, the question of the gas company's negligence held for the jury under all the evidence. [Ed. Note:—For other cases, see Gas, Cent. Dig. §§ 16, 17; Dec. Dig. Q: 20.] Appeal from Circuit Court, Jefferson County, Common Pleas Branch, First Division. Action by Joseph P. McWilliams against the Kentucky Heating Company and others. From a judgment directing Verdict for defendants, plaintiff appeals. Reversed for Inew trial. Edwards, Ogden & Peak, P. F. Sullivan, and L. J. Mackey, all of Louisville, for appellant. Fred Forcht and Matt O'Doherty, both of Louisville, for appellees.

CARROLL, J. This appeal is prosecuted by the appellant from the judgment of the lower court, directing the jury to return a verdict in favor of the appellees in a Suit he had brought against them to recover damages for personal injuries. The appellant, at the time he Sustained the injuries Complained of, was employed by Jefferson County as the engineer of a steam roller in the reconstruction and maintenance Of a COunty road of Jefferson county known as the Eighteenth Street road. The steam roller being operated by appellant weighed about 26,000 pounds. It was so constructed that there was one small roller or wheel in front and tWO large rollers Or Wheels in the rear. These large rollers or Wheels in the rear had each 24 holes in their Surface. TheSe holes were for the purpose of inserting Steel Spikes about four inches long, which Spikes could be placed in the holes and taken out at the pleasure of the person in charge of the machine. When it was desired, in the reconstruction of a macadam road, to tear up the roadbed, these spikes were placed in the Wheels, and as the machine Was run over the road they loosened up the Surface Of the macadam SOmeWhat in the manner that it might be loosened by a pick, plow, Or harrow. When it Was desired to roll the surface of the road the Spikes were taken Out of the Wheels, and the machine run over the road, thereby making it compact and solid. At the place where the appellant was injured the road WaS 40 feet Wide. Sixteen feet of this 40 feet Was a macadam road, and about 24 feet of it Was What is known as a Summer or dirt road, and at the time of the accident the county authorities were engaged in the reconstruction Or repair Of the maCadam on this road, and in this Work had been using the steam roller. In the course of the Work the appellant Was directed by the county officer in charge to run the roller in the Summer Or dirt road several hundred feet, to a point where it would be needed for use on the macadam road, SO that it Would not disturb the macadam road betWeen the place it was standing when the order was given and the place to Which he Was Ordered to remove it. While running the roller down this dirt road as he was directed to do, the spikes in one of the wheels punched holes in an iron gas pipe that had been placed in this Summer Or dirt road, and When these holes Were SO made, the eScaping gaS Came in contact With the fire in the engine, causing an immediate explosion and the envelopment Of the engine in flames. When the explosion occurred and the flames surrounded the engine, the appellant, Who Was operating it, was severely burned and injured, and to recover damages for the injuries so sustained, he brought this suit.

It is further ShoWn by the record that in 1890 the appellees obtained from the Valley Turnpike & Gravel Road Company, a private corporation that then OWned and Operated this road as a toll road, a right of way over the road for the purpose of conveying natural gas from gas fields in Meade county, Ky., to Louisville, Ky. This right of way was evidenced by a written contract between the turnpike company and the appellee, in which it was provided, among other things, that the gaS Company— “agrees and binds itself to keep the line of a pipe ditch in proper condition, well filled until thoroughly settled so as not to interfere with ordinary travel, and any metal or other material necessary to maintain said line in good condition must be furnished by said second party.” Pursuant to this contract the gaS COmpany laid an 8-inch wrought iron pipe, 5/16 of an inch thick, from its gas fields in Meade county over and along the road to Louisville. This pipe was laid in a ditch made in the dirt road about 9 feet from the edge Of the macadam, and COWered OVer With dirt, the pipe being laid, in many places, at an average depth of about 1 or 2 feet below the Surface Of the earth, at Other places nearer to the Surface. It is further ShOWn that at the time and place of the accident the dirt or earth which covered this gas pipe had worn Or washed away, or the mains had been originally placed near the surface, so that the top of the gas main was only an inch or tWO below the Surface Of the roadbed. It is further shown that about 1901 the county of Jefferson purchased this turnpike road from the turnpike Company and converted it into what is known as a free turnpike, and it was thereafter operated and maintained by the county. The evidence further shows that Steam rollers of the type, size, weight, and equipment of the one being Operated by appellant had been used in the repair Of the roadS Of the COunty for about 12 years before the accident, and at that time the county had nine of them in use. It should also be noted that the county officials in charge of the roadwork knew the mains were in the dirt road although appellant did not. The foregoing statement of fact fairly represents the evidence Offered by appellant, but Which was not considered Sufficient by the trial Court to take the case to the jury. In support of the ruling of the lower court, it is argued by counsel for appellees that the law did not impose On them the duty of maintaining gas pipes So far below the surface, or sufficiently strong or sound to prevent the same being punctured by the spikes in the Wheels of a machine of the character operated by appellant, and further, that the proximate cause of the gas escaping was the independent, intervening act of the appellant in Operating the roller With the Spikes in the Wheels over the dirt road, an act which could not have been reasonably anticipated by appellees. The further argument is made that the Officials of Jefferson county knew that the gas main

was in the road, and should have notified appellant, if he did not know of its existence, and this knowledge on the part of these officials relieved appellees from liability. [1] Disposing first of the argument that the knowledge of the county officials that the gas main was in the road transferred to the County liability for the accident. The evidence ShoWS that the appellant had no knowledge whatever of the fact that this gas main was in the road, although it does appear that the county officials in charge of the construction of the road at this point knew that this main was in the road; they did not, however, know it was so close to the Surface as that it would be punctured by the spikes in the roller. But the knowledge of the county officials, or whether they did or did not know of the closeness of the main to the surface of the road, is not a material factor in the disposition of this case. The appellant is not to be dismissed because the county Officials were guilty of some want of care, nor are the appellees to be relieved from liability even if it should be assumed that the negligence of the county Officials Was a contributing cause in producing the accident that caused the injury. We think it is a Well-settled rule in the law of negligence that the negligence of one party does not excuse from liability a third party, also guilty of negligence, if the injury complained of would not have happened except for his negligence. So that, if we should asSume that the county authorities were negligent, and that their negligence, concurring With that of the appellees, produced the injury, the right Of action Created in the appellant against the appellees on account of their negligence is not, in any manner, impaired Or diminished by the negligence of the county officials if they were guilty of any. In Shearman and Redfield on Negligence (5th Ed.) Vol. 1, § 31, the Well-known rule On this Subject is thus Stated:

“The mere fact that another person concurs or co-operates in producing the injury, or contributes thereto, in any degree, whether large or small, is of no importance. If the injuries caused by the concurrent acts of two persons are plainly separable, so that the damage caused by each can be distinguished, each would be liable for the damage which he caused; but if this is not the case, all the persons who contribute to the injury by their negligence are liable, jointly or severally, for the whole damage. It is immaterial how many others have been in fault, if the defendant's act was an efficient cause of the injury.” Sydnor v. Arnold, 122 Ky. 557, 92 S. W. 289; City of Louisville v. Hart's Adm’r, 143 Ky. 171, 136 S. W. 212, 35 L. R. A. (N.S.) 207; City of Louisville v. Arrowsmith, 145 Ky. 498, 140 S. W. 1022; City of Louisville V. Bridwell, 150 Ky. 589, 150 S. W. 672.

We may therefore leave entirely out of view any supposed negligence or want of care on the part of the county officials. The issue whether they were negligent or not has no place in this case. If the appellees Were guilty of actionable negligence, the appellant has the right to maintain this action against them without regard to any negligence on the part of the county officials that may have contributed to the injuries. COmplained of. Having this view of this feature Of the case, we will now proceed to inquire into the sufficiency of the other arguments advanced by Counsel for appellees in Support of the contention that the ruling of the trial judge was proper. [2] The contract obligated the appellees to keep their line of pipes in proper condition, and in such a way as not to interfere With Ordinary travel on the road. The meaning of this condition, as we construe it, is that the appellees undertook to exercise ordinary care to continually keep and maintain the gas mains in Such manner as to have the road, from day to day, in such condition as that it would be reasonably safe, considering the usage and travel Which it might be reasonably foreseen or anticipated it would be subjected to from day to day. Ordinary care to maintain a place or thing in Safe condition, under a state of facts such as We have, is a variable and not a stationary degree of care. It changes as the conditions under Which it is to be exercised change, and keeps pace with these conditions, so that the place or thing under all conditions that it may reasonably be foreseen or anticipated will arise will be in a reasonably safe condition. [3,4] It cannot be maintained that public Service Or Other COrporations may Occupy public roads, under a contract or otherwise, and be held to a less degree Of Care than We have laid down. A private corporation having the right to own and control a public road, as did the turnpike company, Which gave to appellees the right to use the road for the purpose of laying their gas mains, cannot let a contract for the use of part of the road and agree that the Other party may exercise a leSS degree Of Care than Would be consistent with the right of the public to use the road With reasonable Safety, nor can it contract that the use of the road may be Such as to place it in condition that it Would not be reasonably Safe for public travel. [5,6] But it is insisted that the exercise of ordinary care on the part of the appellees in maintaining the gaS main in Such Condition as to leave the road in reasonably safe condition for public travel did not impose the duty of anticipating or guarding against the danger that might follow from the use of the road by the character of machine being operated by appellant at the time of his injury. It is doubtleSS true that the machine being used Was Of unusual size and weight, and that the Spikes in the wheels added largely to the danger of its use, if, as in the case We have, they came in contact with the gas main. It is also likely that this type or character of machine was not in use in Jefferson county, Or elsewhere

Or more years ago. But the evidence is that this type of machine, equipped in the manner that it was when appellant was injured, had been in uSe On the roadS Of JefferSOIn County for some 12 years for the purposes for which it was being used at the time of the injury. So that this type of machine WaS not then either new Or novel, but On the contrary were a part of the usual equipment in use in the improvement Of the highways of Jefferson county. In View, therefore, of these conditions, it cannot be said as a matter Of law that the cause that produced the accident Was Of Such unusual and extraordinary character as that, in the exercise of the care required, the appellees could not have anticipated that this accident and resulting injury would happen. The duty appellees were under to exercise Ordinary Care to maintain the gas mains in reasonably safe condition for public travel does not mean that they were only required to take notice of the kind and type of vehicles and machinery in use when the pipe was laid, Or that they could rest content with conditions then existing without giving any heed to the progreSS in every department of road Working and the changes and improvements ConStantly being made in all classes of road, as Well as Other machinery. It may also be conceded that the main, when first laid, was placed in such condition as to leave the road Safe for the uses and travel to Which the road Was, at that time, Subjected. But the care demanded Of appellees did not end when the main was laid. They were under a duty to exercise Ordinary care to keep and maintain the main in Such COndition as that the road Would be in reaSOnably Safe COndition, COnSidering the uSeS and travel, to which it might reasonably be anticipated it would be subjected in the future, and to take notice Of the future use and travel and exercise Such Care aS might be necessary to maintain the mains in reasonably safe conditions to meet its requirements. The duty imposed upon the appellees to exercise Ordinary care in the maintenance of these gas ma1nS imposed upon them the duty of exercising Ordinary care at all times, While the mains Were in the public road, to guard against injury through any reasonable and proper use of the road, in View Of the COndition to Which its use under modern methods might be subjected. Coulter V. Township, 164 Pa. 543, 30 Atl. 490; Clulow V. McClelland, 151 Pa. 583, 25 Atl. 147, 17 L. R. A. 650; Yordy v. Marshall County, 80 Iowa, 405, 45 N. W. 1042; Gregory V. Adams, 14 Gray (Mass.) 242; Kovarik V. Saline County, 86 Neb. 440, 125 N. W. 1082, 27 L. R. A. (N.S.) 832, 136 Am. St. Rep. 704; Board of Commissioners v. Coffman, 60 Ohio St. 527, 54 N. E. 1054, 48 L. R. A. 455. In laying down these rules we do not mean to hold that it was the duty of the appellees, in maintaining the gaS mains, to provide or to anticipate and guard against accidents arising from extraordinary or unusual CauSeS that COuld not reaSOnably have been anticipated to exist at the time the injury COmplained of occurred. But they were under a duty to take notice Of the uses to Which the roads in Jefferson County Were put, to take notice Of the new methods and machinery employed by the county in the reCOnStruction and repair Of its roads, and to maintain the gas main in such condition as that they would be reasonably safe for uses Such as they were Subjected to by the new methods and new machinery in use by the County. It Should further be kept in mind that Ordinary care is to be measured by conditions as they arise. What would be Ordinary care under One state of facts might be grOSS negligence under another state of facts. What would be ordinary care under some Conditions and circumstances Would be no Care under Other Conditions and circumstances. Or, as said by Thompson on Negligence, Vol. 1, § 25: “The care, caution, and diligence required by the law is always measured by the circumstances of the particular case, and the rule of admeasurement is, the greater the hazard, the greater the care required.” In the application of this Sound principle to the facts of this case, it seems very clear that the exercise of ordinary care required that appellees Should exercise a degree Of Care CommenSurate With the dangerous agency they were transporting in the public road, and not Only guard against danger from the use of the road by ordinary vehicles, but by Such Vehicles and machinery as it might reaSonably be anticipated the County Would use in the repair and reconstruction of its roads, and this could easily have been done by putting the mains deeper below the Surface. There is some suggestion by counsel that it was negligence to operate this machine on the dirt road, but there is no Substance in this contention. The County had the right to use all parts of the road, and to Operate this machine in any part of it that Suited itS COn Venience. The argument is also made that the negligence, if any, Of the appellees in maintaining the gas mains SO close to the Surface of the road was not the proximate cause of the accident. It is said that the proximate cause of the gas escaping was the independent, intervening act of the appellant in operating the roller, with the spikes in the wheels, over the dirt road. It is generally true, in cases like this, that to COnstitute proximate Cause creating liability for negligence, the injury must have been the natural and probable COnsequences of the negligent act, Or, in other words, the consequence that in the light of attending circumstances an Ordinarily prudent man might have anticipated. Logan V. C., N. O. & T. P. Ry. Co., 139 Ky. 202, 129 S. W. 575; Sydnor v. Arnold, 122 Ky. 557, 92

S. W. 289. But, as we have endeavored to point Out, it cannot be said as a matter of law that appellees, in the exercise of the care required, could not have foreseen and anticipated that this accident might have hapTened. We think it was a question for a jury to Say, under all the surrounding circumstances developed in the evidence, whether the appellees in the exercise of ordinary care could have known that their gas main Was Within an inch Or so of the surface of the road in many places, and should have anticipated or foreseen the use to which the road where this gas main was laid might be Subjected by the type of machinery the county Was using in the repair of its roads and the danger that might arise therefrom, considering the nearness of the gas mains to the Surface Of the road. The case of American District Telegraph Co. v. Oldham, 148 Ky. 320, 146 S. W. 764, Ann. CaS. 1913E, 376, is strongly relied on by counsel for appellees as fully supporting the lower court in ruling that the appellant failed to make Out a Case; but We find Such SubStantial difference between the facts in that Case and the facts in the case we have that a principle of law that might be entirely sound When applied to that case would have no pertinency when applied to this one. In the American District Telegraph Co. Case it appears that Oldham, a fireman in the employ of the city of Louisville, responded with his company to an alarm of fire. When they reached the fire they wrapped the hose around a guy post used by the telegraph company for the purpose of running a wire from it to a telegraph pole. The guy post, which happened to be rotten, was broken off and pulled down by the strain put on it in operating the hose, and when it fell struck Oldham. In holding that the telegraph company was not liable, we said:

“It was incumbent upon the telegraph company to maintain its poles in a reasonably safe condition for the purposes for which it was intended, and to keep it in such condition to withstand such strain as might reasonably be anticipated from the travel on the street. sk * But the company was under no obligation to maintain a pole in such condition that a fireman might safely wrap a hose around it, and if the strain of the hose caused the pole to fall, this use of the pole for a purpose for which it was not intended was the proximate cause of the injury.”

It Will thus be seen that the decision in that case Was put distinctly upon the ground that the pole Was being used in a manner entirely foreign to the purpose for which it Was erected. The telegraph Company, in the exercise of the highest degree of care, could not have anticipated that a fire hose would be Wrapped around the pole, thereby Subjecting it to a Strain more than it could Stand.

In the case we have the gas mains were in the public road, near the Surface, and at a place where it was expected and intended that vehicles would go. We think the case should have gone to the jury, and that the court erred in ruling as a matter of law that the appellant failed to make out a case for a jury. Wherefore the judgment is reversed for a new trial, in conformity With this opinion.


(Court of Appeals of Kentucky. Oct. 15, 1915.)

1. EVIDENCE (3: 397 — PAROL EVIDENCE AFFECTING WRITINGS. Where the parties to a contract have deliberately put their engagement into Writing expressed to import a legal obligation, with no uncertainty as to its object or extent, all previous negotiations and agreements with reference to the subject-matter are presumed to have been merged in the writing, and, in the absence of fraud or mistake, parol or extrinsic evidence is not admissible to vary, modify, or contradict the terms of the Written contract. [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1756–1765; Dec. Dig. G->397.]

2. EVIDENCE 3:397 — PAROL EVIDENCE AFFECTING WRITINGS—WRITTEN CONTRACTCONSTITUTION. A written contract which will merge prior negotiations and agreements and render inadmissible parol evidence varying its terms need not be in any particular form, or be contained in one paper, or signed by both parties, provided it constitutes an efficacious contract. [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1756–1765; Dec. Dig. 3:397.]

3. MONEY RECEIVED C->18 – AUTHORITY TO ADVANCE FUNDS – SUFFICIENCY OF EVIDENCE. In an action against an alleged joint borrower of funds for money had and received, evidence held to show that defendant’s only obligation was that in return for a loan to its subcontractor it would turn over and pay to plaintiff all estimates furnished by the United States government, or money received thereon, for river work. [Ed. Note.—For other cases, see Money Received, Cent. Dig. §§ 70–72; Dec. Dig. G->18.] 4. BANKS AND BANKING & 134—LIEN OF BANK ON DEPOSITs. Where a bank advanced a subcontractor for government work funds to meet pay rolls, it had the legal right to appropriate from a deposit in such bank by the contractor to the subcontractor's account an amount sufficient to cover the advance for pay rolls or to compel payment from the deposit. [Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 353–374; Dec. Dig. Q=134.]

5. UNITED STATES @->74–CONTRACTS—SURETY'S RIGHT TO COMPLETE WORK–EFFECT. Where a government contractor defaulted on the work, which was undertaken by his surety, such surety had the right to protect itself against threatened loss by assuming the contract and subletting it, without subjecting itself to primary liability for a debt of such subcontractor contracted by it to secure funds to meet pay rolls of the first contractor, although the surety's liability on the contract would have compelled it to liquidate such pay rolls. [Ed. Note:—For other cases, see United States, Cent. Dig. § 57; Dec. Dig. Q:74.]

Appeal from Circuit Court, Lee County.

Action by the Farmers' Bank of Estill County against the Citizens' Trust & Guaranty Company. Judgment for plaintiff, and

defendant appeals. Reversed, and cause remanded for new trial.

Burnam & Burnam, of Richmond, and G. W. Gourley, of Beattyville, for appellant. Hazelrigg & Hazelrigg, of Frankfort, and Sutton & Hurst, of Beattyville, for appellee.

SETTLE, J. This is an appeal from a judgment entered upon a verdict for $5,000, with interest from October 22, 1912, recovered by the appellee, Farmers' Bank of Estill County, against the appellant, Citizens' Trust & Guaranty Company, in the Lee circuit court. The action in Which the judgment was rendered grew out of the following state of facts:

One W. S. Garrettson, who had entered into a contract with the United States government to Construct lock No. 13 On the Kentucky river, executed a bond to the government for the faithful performance of the contract, upon which the appellant, Citizens’ Trust & Guaranty Company, a corporation having its chief office at Parkersburg, W. Va., became his surety. After undertaking the Work required of him by his contract, Garrettson failed to comply with its terms, and abandoned the work on lock No. 13. Being liable upon Garrettson's bond, it devolved upon appellant to complete the Work Of conStruction or pay to the government the liability incurred by it on the bond. Under a contract With the government Similar in terms to that Of GarrettSOn it undertook the former course. It thereupon sublet this contract to Gahren, Dodge & Maltby, a corporation of the state of New York, to complete the work of construction which had previously been undertaken and abandoned by GarrettSOn ; the Gahren, Dodge & Maltby Company being at that time engaged, under a contract with the government, in the ConStruction of a lock and dam in the Kentucky river, known as No. 14, at or near Heidelberg, Ky. The contract between appellant and the Gahren, Dodge & Maltby company is contained in tWO Writings, dated, respectively, September 17, 1912, and October 8, 1912, the first being as follows:

“This agreement made this 17th day of September, 1912, by and between Citizens' Trust & Guaranty Company of West, Virginia, a corporation, of the one part, and Gahren, Dodge, \\ Maltby, a corporation, of the state of New York, of the other part, witnesseth: That Gahren, Dodge & Maltby agrees to take over and complete the W. F. Garrettson contract at dam No. 13, Kentucky river, Kentucky, in all respects acceptable to the government of the United States, and to expedite the work alad carry it on to the best possible advantage, upon the following terms and conditions: Gahren, Dodge & Maltby will at once put a plant worth $5,000 upon the site, and will put such an organization and force of men there as will insure the prompt and speedy prosecution of the work, night and day, if necessary. They will pay the unpaid pay rolls which will be due from the 20th to the 25th of September, and will charge as their compensation ten per cent. (10%) of

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