Applegate v. Portland Gas & Coke Co.

• Citation: 18 P.2d 211,142 Or. 66
• Parties: APPLEGATE v. PORTLAND GAS & COKE CO. [*]
• Decision Date: 10 January 1933
• Court: Supreme Court of Oregon

18 P.2d 211

142 Or. 66

APPLEGATE v. PORTLAND GAS & COKE CO. ^[*]

Supreme Court of Oregon

January 10, 1933

Department 2.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

Action by J. W. Applegate against Portland Gas & Coke Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

CAMPBELL J., dissenting.

Irving Rand, of Portland (John A. Laing and Henry S Gray, both of Portland, on the brief), for appellant.

Henry E. Collier and Earl F. Bernard, both of Portland (Collier Collier & Bernard, of Portland, on the brief), for respondent.

BELT J.

This is an action to recover damages for personal injuries sustained by reason of having inhaled illuminating gas which it is alleged the defendant carelessly and negligently permitted to escape as a result of a loose connection between service pipe and gas meter. The meter was installed by defendant in the basement of an apartment house leased by the plaintiff, directly under the room in which the latter slept.

It is alleged in the complaint: "That the defendant carelessly and negligently failed and neglected to keep its said meter and the connections thereof in proper condition and repair and failed and neglected to properly, or at all, secure or fasten said meter by means of straps around the same, and fasten to the wall, or otherwise secure the same, so as to hold said meter secure and in a position so as to prevent its falling or its connections becoming loose, disconnected or out of repair."

Plaintiff alleged that, as a proximate result of the negligence of the defendant, he was seriously and permanently injured, and by reason thereof demanded judgment in the sum of $11,000.

Defendant in its answer admitted that it "owned, installed, cared for, and supervised" the meter and service pipes in question. It denied the negligence as averred in the complaint, and alleged affirmatively that the meter and pipes were installed by it in "a proper, safe, and efficient condition so that no escape or leakage of gas therefrom was likely to or did occur from any defective condition thereof over which defendant had any control, or for which defendant was or is in any wise responsible or liable."

It is also alleged, in substance, by defendant that plaintiff had full charge and control over the premises in which the meter and service pipes were located, and that, if the meter and connecting pipes were in such defective condition as to permit the leakage of gas, it was due to the negligent interference with the same by plaintiff, or by persons under his supervision. Finally it is averred that any injuries plaintiff may have sustained were the result of his sole negligence.

The affirmative matter of the answer was denied in the reply. on the issues thus briefly stated, the cause was submitted to a jury and a verdict returned in favor of the plaintiff for $5,000. Defendant appeals.

The most serious question is whether there is any evidence to support the charge of negligence against the defendant company. While it is well established that a gas company is not an insurer of the safety of its pipes or meter connections (see note 25 A. L. R. 265), it is incumbent upon those who deal with such dangerous commodities to exercise care commensurate with the danger involved. Sharkey v. Portland Gas Co., 74 Or. 327, 144 P. 1152, 145 P. 660; 28 C.J. 591. A gas company is required, not only to exercise reasonable care in the installation of its gas pipes and meters so that no gas will escape therefrom, but it is duty bound to keep and maintain its system in a reasonably safe condition. Castner v. Tacoma Gas & Fuel Co., 123 Wash. 236, 212 P. 283. It is said in Helm v. Manufacturers' Light & Heat Company, 86 W.Va. 628, 104 S.E. 59, 61, 25 A. L. R. 240: "As the meter and its connections were furnished, installed, and maintained by the defendant, and the plaintiffs had no right to molest or interfere with it, we are of the opinion that the duties of proper installation, maintenance, and inspection of it and the selection of safe and suitable fittings for connection thereof with the service pipes, rested upon the defendant."

In the instant case it is not asserted that the defendant failed to make reasonable inspection of the meter and its connections. Neither is it contended that the company had any notice or knowledge of gas leakage prior to time of injury. Where reasonable care has been exercised in the installation and inspection of service pipes or meters located upon premises under control of the consumer, the company is not liable for leakage of gas, unless, after having been notified of such dangerous condition, it is negligent in making suitable repairs or turning off the gas. Anderson v. Atlantic City Gas Co., 145 A. 238, 7 N. J. Misc. 297; Ingledue v. Davidson, 102 Cal.App. 703, 283 P. 840; Cracraft v. Wichita Gas Co., 127 Kan. 741, 275 P. 164. If, however, the meter or service pipes were improperly or carelessly installed, the liability of the defendant company would not depend upon notice of defective condition. Under such circumstances, the company would be bound reasonably to anticipate that injury might result. 12 R. C. L. 909. As stated in 28 C.J. 593: "If leaks or defects in the company's pipes occur because of faulty construction or otherwise through the company's fault, it is liable without notice for any resulting injury to person or property." The rule is thus stated in Messmer v. St. Louis County Gas Co., (Mo. App.) 42 S.W.2d 963, 965: "*** That as to notice, where it appears that the company has exercised due diligence in inspecting its pipes for defects therein, and such breaks or defects as are found are to be attributed, not to its own negligence, but to the fault of others, or to natural causes, it is not to be held liable until it has been given notice, and a reasonable time to make repairs; that, on the other hand, if it is shown that the leaks or defects have occurred in its pipes because of their faulty construction, or for any other reason for which the company is to blame, then it is to be held liable, without notice, for the resulting injury. ***"

Since plaintiff was in control of the premises upon which the meter in question was located, and the plaintiff has undertaken specifically to point out the cause of the leakage, the doctrine of res ipsa loquitur has no application. Gerdes v. Pacific Gas & Electric Co. (Cal. App.) 13 P.2d 393; A. & J., Inc., v. Southern Cities Distributing Co., 173 La. 1051, 139 So. 477; National Sheet Metal Roofing Co. v. New York Tel. Co., 137 A. 409, 5 N. J. Misc. 503. The mere leakage of gas did not of itself create any presumption of negligence. There is no analogy between the case at bar and that of Sharkey v. Portland Gas Co., supra, as, in the latter case, the pipes from which the gas leaked were in the street and under the exclusive control of the gas company. What was said there relative to res ipsa loquitur must be read in the light of the facts under consideration. Neither should the instant case be confused with those where gas has been permitted to escape from gas mains in streets to adjoining buildings. Here the leakage occurred on the premises leased by the plaintiff.

In view of the above legal principles and of the record before us, it is clear that whatever right plaintiff has to recover is based upon careless and improper installation of the meter and connecting pipes. There is no question as to plaintiff's being injured by...