Thompson v. Ohio Fuel Gas Co.

Citation224 N.E.2d 131,38 O.O.2d 294,9 Ohio St.2d 116
Decision Date01 March 1967
Docket NumberNo. 39924,39924
Parties, 38 O.O.2d 294 THOMPSON, Admx., Appellant, v. OHIO FUEL GAS CO., Appellee.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

Expert testimony as to the standard of care customarily used by those installing and maintaining underground gas transmission lines is not essential in an action for wrongful death arising out of an explosion which occurred when a county employee engaged in routine maintenance of a ditch adjacent to a township road struck such a line with the blade of a road scraper, where there was evidence warranting a finding that the line was inadequately marked and only 21 inches below road level. (Englehardt v. Philipps, 136 Ohio St. 73, 23 N.E.2d 829, explained.)

Plaintiff's decedent was an equipment operator for the Licking County engineer. On September 6, 1961, in the course of this employment, he was operating a road grader for the purpose of cleaning and cutting a ditch adjacent to a township road when the blade of the grader struck the defendant's gas transmission line which passed under the road and ditch at that point. An explosion and fire ensued which injured plaintiff's decedent and caused his death.

There is evidence that the gas line had existed unchanged and the same location for some 30 years. It was claimed that the operation in which decedent was engaged involved ditch maintenance and was routine in nature. Although the defendant had worked on the same ditch on other occasions there is no evidence that he knew of the existence of the line. There is evidence that a pipe intended as a marker for the gas line was located in or near the fence line on the opposite side of the road. This pipe, as described in the evidence, was of doubtful value as a warning since it was clear that one in the decedent's position might have passed it by on many occasions without seeing it or might have seen it many times without identifying it as a marker of a subterranean gas line. The trial court, at the close of the evidence, directed a verdict for the defendant, stating that the evidence was deficient in that it failed to show a standard of care employed by those situated similarly to the defendant. The Court of Appeals for Franklin County affirmed the trial court's judgment.

The cause is before this court pursuant to the allowance of the plaintiff's motion to certify the record.

Nelson Lancione, Columbus, for appellant.

Wright, Harlor, Morris, Arnold & Glander, Rudolph Janata, Jr., and Roger F. Strauss, Columbus, for appellee.

PAUL W. BROWN, Judge.

The petition charges that the defendant placed and maintained the pipe beneath and adjacent to the public road; that defendant was negligent in connection therewith in several respects; and that the defendant's negligence in one or more of these respects caused the explosion which resulted in the plaintiff's decedent's death. Suffice it to say that the evidence as to some of the specifications of negligence was deficient, so that the ultimate question which confronted the trial judge at the close of the evidence involved the depth of the pipe and the sufficiency of the notice of the presence of the gas transmission line given by the defendant to the plaintiff's decedent under the particular circumstances of the case.

The case was considered to be of great general interest because of the holdings of the trial and appellate courts that it was necessary for the plaintiff to show as part of his case the custom and practice of other gas transmission companies in installing and maintaining similar gas transmission lines in order to provide a 'standard of care' against which defendant's conduct might be judged.

Counsel for the appellee propose that the trial court did not err in requiring such affirmative evidence of custom and practice and claim that, where all factors involved as to how a standard of care should be exercised are not obvious to and readily understandable by a lay jury, affirmative evidence of standards of care is essential.

We do not believe this to be the law. Mr. Justice Holmes in Texas and Pacific Ry. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905, said: 'What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.'

In 2 Harper and James on The Law of Torts 966, Section 17.1, beginning at page 966, we find:

'Except for malpractice cases (against a doctor, dentist, etc.) there is no general rule or policy requiring expert testimony as to the standard of care, and this is true even in the increasingly broad area wherein expert opinion will be received. * * * Courts could very easily expand the area in which expert testimony is required to establish the standard of conduct, but the tendency has been instead to resolve doubtful questions in favor of allowing the jury to decide the issue of negligence without its aid. * * *'

The recognized function of evidence of customs, general practice or standard operating procedures was pointed out in Ault v. Hall, 119 Ohio St. 422, 164 N.E. 518, 60 A.L.R. 128. Paragraphs three and four of the syllabus of that case read as follows:

'3. Customary methods or conduct do not furnish a test which is conclusive or controlling on the question of negligence or fix a standard by which negligence is to be gauged, but conformity thereto is a circumstance to be weighed and considered with other circumstances in determining whether or not ordinary care has been exercised.

'4. Methods employed in any trade, business or profession, however long continued, cannot avail to establish as safe in law that which is dangerous in fact.'

Taft, J., in Witherspoon v. Haft, 157 Ohio St. 474, 479, at page 482, 106 N.E.2d 296, at page 301, another case in which it was argued that the defendant had followed customary practice and hence had complied with the standard of care established by others in his trade or calling said:

'The real question in each case is whether reasonable minds could come to the conclusion that the defendant's conduct fell below the standard of ordinary care. Customary conduct or methods were circumstances to be considered with other circumstances in determining whether they could. Among the other circumstances to be so considered in each case was the serious danger involved as a consequence of the defendant's conduct. * * *'

As we see, it the problem which confronted the trial judge at the close of the evidence in this case was not the lack of evidence of a standard of care but rather the question of whether under the circumstances affirmatively shown by the plaintiff's...

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