As I view this case, there is substantial evidence of a probative nature presented by the plaintiff to support the allegations of his third amended petition. Therefore, in my opinion, the trial court committed error prejudicial to plaintiff in directing a verdict for defendants at the close of plaintiff's case, by reason of which I feel obliged to dissent from the judgment of affirmance and from the lengthy opinion of over 42 pages filed by the majority. As I read the opinion, the evidence is weighed at great length and in a light most unfavorable to the plaintiff. There are a number of quotations from the cross-examination by defendants but little recognition is given to the substantial testimony favorable to the plaintiff. In fact, the opinion seems to question the veracity of the testimony and good faith of the principal expert witness presented by the plaintiff. Such a procedure is not within the function of a reviewing court and is contrary to established case law of Ohio, reference to which will hereafter be made. *Page 497
The record shows also that the trial judge overruled defendants' objections to hypothetical questions submitted to professor George E. Barnes, head of the Department of Civil Engineering, Case Institute of Technology, for 22 years, which contained a factual resume of the testimony presented by plaintiff and also overruled the objections of the defendants to hypothetical questions submitted to other expert witnesses presented by the plaintiff. It is a reasonable conclusion that the trial judge must have considered, at the time of overruling these objections, that there was evidence before the court tending to support all the elements of the hypothetical questions. If this be true, the trial judge must either have ignored his previous rulings on these questions or have changed his mind completely concerning them when he directed a verdict in favor of the defendants at the close of plaintiff's case.
A careful reading of the record shows that the factual evidence presented by the plaintiff tends to prove that the explosion was caused by vaporized gasoline fumes. This factual evidence is then supported by expert testimony to the same effect. The evidence in support of the plaintiff's case, when considered alone, completely eliminates the possibility that the explosion was due to leakage of natural gas. In this connection, the record shows that a representative of the State Fire Marshal's office investigated the disaster the day after the explosion and conducted explosimeter tests, none of which showed that the explosion was due to natural gas. Natural gas leaks are continuous in nature whereas gasoline leaks and the movement of gasoline may be intermittent or caused by noncontinuous circumstances such as the torrential downpour of rain which commenced on the evening of the explosion at about 6:00 p. m. The State Fire Marshal also investigated the natural gas service line from the meter to the curb, and when tested by air pressure, it showed no leaks. The meter itself was undamaged except as to fire damage, but there was no rupture damage. The record shows clearly that there was no evidence of a natural gas loss before the court at the time the defendants' motions were granted. In any event, such evidence would be defensive matter only.
A considerable amount of factual evidence was produced by the plaintiff in support of the allegations of his petition, *Page 498 which we shall not attempt to cover in detail because it would unduly lengthen this opinion. However, reference must be made to some of the factual evidence produced by the plaintiff.
The explosion occurred on August 10, 1955, shortly after 7:00 p. m., following the rainstorm above referred to. The night preceding the explosion, a truck driver, operating south on North Main Street at approximately midnight, stopped at the intersection of the public square. He heard an explosion and looked up to hear a second explosion and to see an are of fire four to five feet high in front of his truck at a point near the storm sewer catch basin at that intersection. He described the fire as being red in color and lasting only a second. This was positive evidence of a limited noncontinuous flammable substance in the sewers and negated the theory that a natural gas leak was the cause of this phenomenon but supported the claim of the plaintiff that a small pocket of gasoline would produce such a result coming from the sewer. Notice of this was given to the village authorities.
A few days after the explosion, soil samples were taken from around the cast iron plumbing soil stack in the ruins of the restaurant building next to the wall between the basement and the crawl space. The samples of soil smelled of gasoline. Approximately one week after the explosion, a village official was called to the grocery store at the southeast corner of the public square where he smelled gasoline fumes in the rear of the building.
There are two sewer systems in the village, one sanitary and one a storm sewer. A branch of the sanitary sewer servicing both gasoline stations is also the sanitary sewer to which the restaurant building is connected. It was the gravamen of plaintiff's case that the leakage of gasoline from the Ohio Pennsylvania station and from the Standard Oil station, operated by Swezey and Barnes, constituted the only sources from which gasoline entered the sanitary sewer system and proximately caused the explosion.
Two witnesses for plaintiff testified that they investigated and found gasoline fumes emanating from the sanitary sewer manhole at the corner in front of the Ohio Pennsylvania station. The significance of this evidence is emphasized by the testimony that about one year earlier 200 gallons of gasolinehad *Page 499 overflowed during a delivery at the Ohio Pennsylvania station. On that occasion, volunteer firemen attempted to wash the gasoline into the storm sewer and gasoline fumes entered the furniture store on East Main Street across from the restaurant. Sufficient evidence was produced by the plaintiff concerning the negligence of the village of Andover tending to show that it was negligent in maintaining a sewer system without adequate ventilation, thereby permitting flammable substances to accumulate therein in dangerous quantities and in addition, the village failed to abate the nuisance, namely, gasoline in the sewer, which, in the exercise of ordinary care, it should have known to have been there. Furthermore, the village sealed over pick holes which had the effect of preventing the escape of the gasoline vapors. The plaintiff presented substantial evidence to show this.
Evidence was also introduced by plaintiff that sometime between 1950 and 1952, pump No. 1 at the Ohio Pennsylvania station began to lose prime. The president of the Ohio Pennsylvania Oil Gasoline Company claimed that a valve was then installed around pump No. 1 to hold the gasoline in the line and thereafter it operated normally. The station manager denied that he knew of any such installation. Failure of a pump to hold its prime was probably due, as set forth in the evidence by plaintiff, to a tiny rust hole in the suction line that became enlarged enough to stop the pump altogether shortly after the explosion.
Considered entirely from the standpoint of plaintiff's evidence, it is significant that two weeks after the explosion the station manager was pumping gasoline out of pump No. 1 when the pump stopped entirely. He removed the pump from its stem and set it to one side on the island. No repair work was done on pump No. 1, the line servicing it, or the regular gasoline tank, during that interval.
On the afternoon of October 25, 1955, the State Fire Marshal inspected the Ohio Pennsylvania station as part of his general investigation of the Andover explosion. Apparatus for performing a liquid-level sight glass test was attached to the underground regular gasoline system, and 850 gallons of gasoline were pumpedinto the 1,000 gallon regular gasoline underground tank in anattempt to fill the regular tank. Gasoline *Page 500 drained out of the test sight glass as fast as it was put in. The marshal discovered that the gasoline was running into and coming up a field tile inside the pump island where pump No. 1 had been removed from its normal position. On the morning of October 26, 1955, the State Fire Marshal directed that a hole be dug alongside the island at its western end, thus exposing the suction line servicing pump No. 1.
A section of the line was cleaned of surrounding soil revealing a hole in the line as it lay in the ground. A piece of pipe was then removed and the suction line plugged. When the pipe was removed, the hole was in the horizontal line near the elbow. The distance from the surface of the ground to the level of the suction line where the hole was discovered was estimated at 18 inches. The wall thickness of the section of pipe removed is slightly greater than 1/8th inch. At the hole the pipe metal comes to a "feather edge" and it is claimed by the plaintiff that it is obvious from an examination of the pipe that the 3/8ths inch irregular hole resulted from corrosion over a prolonged period of time. A new section of pipe was put in place of the removed section. Pump No. 1 was primed with 1 to 1 1/2 quarts of gasoline and the pump operated normally thereafter without putting any gasoline into the suction line.
Considering now the Standard Oil station operated by Swezey and Barnes and located across from the public square from the restaurant, the evidence showed that the ground surface was covered with slag. Several floor drains in the station led into a catch basin in the north driveway that connected with a storm sewer behind the station. This storm sewer line ran north to the storm sewer along West Main Street, which flowed toward the square along a route adjacent to the telephone conduit and water lines. Sanitary lines from the first floor lavatories joined together in the basement, turned south and then east toward the public square, where they joined the main sewer. The sewer line continued past the Ohio Pennsylvania station and the restaurant. On the night of the explosion, at 6:50 p. m., the storm sewer that drained the garage was full, and there was three inches of water in the parts room.
On August 16, 1955, six days after the explosion, a representative of the State Fire Marshal inspected this station. His report listed the following conditions existing: *Page 501
"Driving and parking cars and trucks over tanks with no protection over tanks, three tanks above ground setting in driveway."
In addition, this representative of the State Fire Marshal reported that he checked the inventory records of the station back for a period of 45 days with one of the managers of the station, and according to the station records, found a shortageof 642 gallons. The representative of the State Fire Marshal notified the Youngstown office of the Standard Oil Company and three employees of the company were sent to the station. It was claimed by them that the shortage was due to cross dumping. However, after further tests, the station manager still maintained he was short 642 gallons according to his records.
After the explosion, in 1956, this station was abandoned for further use. In 1957, the underground tanks were filled with concrete and left in the ground. Shortly thereafter, the station property was sold to the Andover Bank. The Standard Oil Company arranged for a contractor to excavate these large concrete tanks and transport them on trucks to the railroad where they were then shipped on flat bed cars to Ashtabula where they were thrown into Lake Erie. Of course, the Standard Oil Company has not had an opportunity to put on its defense and no explanation is forthcoming concerning this peculiar incident which, intended or not, had the effect of destroying evidence.
There were five expert witnesses called by the plaintiff as follows:
Mr. Desso T. Mitchell, senior consulting engineer for the Jennings-Lawrence Company of Columbus, Ohio. Among other things, this witness testified, in answer to a hypothetical question, that in his opinion it was highly probable that the sanitary sewer backed up into the restaurant basement on the night of the explosion due to the overflow caused by the storm.
Professor Edward B. Evans of the Metallurgical Engineering Department of Case Institute of Technology. This witness stated, in answer to a hypothetical question, that the hole in the pipe 3/8ths inches long in its largest dimension, based on his knowledge of Ohio soils and other facts applied in the hypothetical question, could have developed in no less than one-half year and no more than eleven years prior to the removal of it *Page 502 from the ground, but in all probability the hole was there at least a year prior to the time of its removal from the ground.
Mr. Albert Seidowski, who is engaged in the inspection and repair of gasoline service station equipment, testified, among other things, that the only test he considered to be satisfactory or reliable for underground equipment was the liquid-level test that had been employed by the State Fire Marshal when he inspected the Ohio Pennsylvania station.
Professor George E. Barnes, head of the Department of Civil Engineering of Case Institute of Technology for 22 years, known as a man of very fine experience and excellent reputation in his field, testified, in answer to a long hypothetical question containing most of the factual evidence produced by plaintiff at the trial, that the most probable cause of the catastrophe was gasoline from the two filling stations, the Ohio Pennsylvania station and the Standard Oil station on the same corner.
Professor Robert C. Weast of the Chemistry Department of Case Institute of Technology testified that in his opinion the explosion and resulting fire were most probably caused by gasoline vapors. He testified further that gasoline is the most probable cause because in this instance the violence of the explosion indicates that there was a fuel with considerable energy which caused this destruction and that one cubic foot of gasoline vapors contains approximately 5 or 6 times the energy of one cubic foot of natural gas vapors. He stated that vapors from 0.3 gallons (2 1/2 pints) could have caused all the damage of this explosion, assuming only 1% efficiency. He reached his conclusion from the nature and extent of damage combined with an extended study of combustibles and explosives. He also testified confirming the evidence that there is no known instance in which sewage gas resulting from the decomposition of organic matter has ever reached sufficient quantity or concentration in a sewer to cause an explosion.
A question is raised in the majority opinion and in the brief of counsel for the Standard Oil Company concerning their control of the physical property at the Standard Oil station operated by Swezey and Barnes.
Upon examination of the record, the writer of this opinion is convinced that while the Standard Oil Company was out of *Page 503 possession, nevertheless, sufficient evidence was produced by plaintiff which would be subject to rebuttal by the defense to show actual joint control over the physical property of this station. There was testimony to the effect that the Standard Oil Company undertook and did all maintenance work on the property and on the leased equipment. This takes the question out of the line of Ohio cases dealing with a landlord out of possession who does not exercise any control over the property. The evidence indicates that the Standard Oil Company maintained actual, if not paramount, control over the pumps and underground tanks on their property. They installed new tanks and in general supervised the operation so that it became a jury question, in view of the substantial evidence produced by plaintiff showing the joint control.
This is not intended to be a statement of all the substantial evidence presented by plaintiff in support of his position. Suffice it to say that all the evidence of plaintiff points to one factor only as the cause of the explosion and that is gasoline fumes which entered the sewer lines coming from the two gasoline stations. The defendants attempted to make their case on cross-examination plus the testimony of one witness for the defense who was allowed to testify during the plaintiff's case over the strenuous objection of the plaintiff. The testimony of this witness should be completely disregarded by the court. We have no way of knowing how much his testimony may have influenced the trial judge in directing a verdict. However, the brief of the Ohio Pennsylvania Oil Gasoline Company indicates reliance upon this testimony.
The controlling issue on the motion of defendants to direct a verdict was whether the plaintiff had produced evidence sufficient to support a prima facie case. I submit that the plaintiff presented ample evidence, both factual and by expert testimony, to substantiate the allegations of his petition and that certainly reasonable minds could reach different conclusions on the questions of fact presented. Something caused this explosion. Plaintiff's evidence shows that it was not natural gas or decomposition of organic material, but gasoline vapors alone. Therefore, the question of fact was for the jury, and the court should have overruled the motion to direct a verdict. This proposition is well established by authoritative decisions. *Page 504
In Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St. 469, the Supreme Court, when abolishing the scintilla rule in Ohio, said, as appears in paragraph four of the syllabus:
"4. Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judgewould set aside a verdict on the weight of the evidence." (Emphasis added.)
In Wilkeson, Admr., v. Erskine Son, Inc., 145 Ohio St. 218, the court held, as appears in paragraph two of the syllabus:
"2. Where a defendant, at the close of all the evidence, moves the court to direct a verdict in its favor, the plaintiffis entitled to have the evidence construed most strongly in hisfavor." (Emphasis added.)
At page 228 of the same case, the court said further:
"`The trial judge, in ruling upon a motion, to direct a verdict * * * must not only assume the truth of the evidence inbehalf of the party against whom the motion is directed, butmust construe the evidence most strongly in favor of thatparty, or, as it is sometimes expressed, must give the mostfavorable interpretation or intendment in his behalf, and adoptthe view most favorable to his contention, or consider it in thelight most favorable to him, of which such evidence issusceptible. * * * In other words, the evidence must beconstrued favorably to the submission of the case to the jury,and the trial judge should indulge in every possibleconsideration in favor of such submission.'" (Emphasis added.)
It seems to me that, from the evidence, reasonable minds could reach different conclusions upon the questions of fact produced by the plaintiff, the test being not whether the trial judge would set aside a verdict on the weight of the evidence. Thus, the trial judge should have overruled the motion to direct a verdict at the close of plaintiff's case. In this connection, where such great reliance is placed in the majority opinion upon cross-examination of the expert witnesses for the plaintiff, the record shows clearly that the witnesses on redirect examination adhered to their testimony produced on direct examination. An example of this is Professor Barnes' reply to the following question presented to him on redirect examination:
"Q. Let me ask you this question, taking the facts stated *Page 505 in the hypothetical question and extracting nothing from the testimony except that which has been the testimony during the course of your appearance on the stand here, and taking the facts which you are, you have made a matter of your own observation, and taking your own general knowledge and experience in this field, and all of the questions on cross-examination and redirect examination, I will ask you whether or not you have any different opinion than you previously expressed as to the probable cause — and I quote `probable' — more likely than not, as to the cause of the explosion at the restaurant building? A. My opinion isn't changed."
A point has been made in the majority opinion that Dr. Barnes based part of his opinion on the assumed facts and also upon his observation and experience at the scene of the catastrophe. There was no error in the manner in which the question was put or his testimony. A case in point is De Donato v. Wells, Recr.,328 Mo., 448, 41 S.W.2d 184, which has been annotated at length in 82 A. L. R., 1331, the headnote of which is as follows:
"1. An expert witness may give an opinion either from facts within his own knowledge and observation, or from hypothetical facts, or from the two combined."
Under these and similar circumstances, the law is well settled that the weight of the evidence and the credibility of the witnesses is for the jury alone and not for the court to decide.
It is not the province of this court to theorize as to the cause of this explosion or to determine facts as on a trial denovo. We must be guided entirely by the evidence adduced on plaintiff's case for the purpose of the motion. In this case the evidence of plaintiff is such that the motion for a directed verdict should have been overruled.
For the reasons stated, the judgment should be reversed and the cause remanded for further proceedings according to law. *Page 506