Brown v. Wisconsin Natural Gas Co.

• Decision Date: 29 June 1973
• Docket Number: No. 254,254
• Citation: 59 Wis.2d 334,208 N.W.2d 769
• Parties: , 71 A.L.R.3d 1159 Raymond R. BROWN et al., Plaintiffs, v. WISCONSIN NATURAL GAS CO. et al., Appellants, Kenneth MacDonald d/b/a MacDonald Excavating Co., Defendant-Respondent, Thomas E. MacDonald d/b/a MacDonald Trenching Co., Third-Party Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 769

208 N.W.2d 769

59 Wis.2d 334, 71 A.L.R.3d 1159

Raymond R. BROWN et al., Plaintiffs, v. WISCONSIN NATURAL GAS CO. et al., Appellants, Kenneth MacDonald d/b/a MacDonald Excavating Co., Defendant-Respondent, Thomas E. MacDonald d/b/a MacDonald Trenching Co.,

Third-Party Defendant-Respondent.

No. 254.

Supreme Court of Wisconsin.

June 29, 1973.

Prosser, Wiedabach, Koppa, Lane & Quale, Jack R. Wiedabach, John E. Feldbruegge, William P. Croke, Milwaukee, for Wis. Natural Gas.

Foley & Lardner, Marvin E. Klitsner, John R. Collins, Clarence W. Malick, Milwaukee, for Wis. Telephone Co.

Godfrey, Neshek & Worth, Elkhorn, for respondents.

HEFFERNAN, Justice.

1. Negligence of the Gas Company

A gas utility is under a duty to exercise 'a higher degree of vigilance and caution than in ordinary affairs of life and business . . . in dealing with natural gas because of its highly explosive and dangerous character and its tendency to escape its proper containers.' Webb v. Wisconsin Southern Gas Co., Inc. (1965), 27 Wis.2d 343, 350, 134 N.W.2d 407, 411. Accord, Weber v. Interstate Light & Power Co. (1955), 268 Wis. 479, 481, 68 N.W.2d 39. The initial question to be determined is whether the trial court's finding that the Gas Company violated its duty of care was contrary to the great weight and clear preponderance of the evidence.

The trial court found that the Gas Company had been causally negligent in failing to properly mark its laterals along West Peck Street, so that they could be avoided by the excavators. The Gas Company does not deny that it would be liable if, in fact, it negligently marked the laterals, but argues that the evidence is insufficient to show that the marking was inadequate.

Whether the lateral at 931 West Peck Street was marked at all is disputed. Thomas E. MacDonald and a number of Telephone Company employees testified that they saw no marks at that location. On the other hand, William Falk, the Gas Company employee who had been assigned to locate the laterals, testified that he located the lateral at 931 West Peck Street by painting a blue mark on the adjacent sidewalk. Other Gas Company employees confirmed that a blue paint mark was visible on the sidewalk when the damaged pipe was dug up after the explosion. The Gas Company argues that the credibility of the Telephone Company employees who testified to the contrary was thoroughly impeached and the testimony of its own employees should be believed.

The credibility of witnesses is, however, peculiarly a matter for the trier of fact. The trial judge did not specifically determine whether or not the lateral had been marked, but found that the lateral had not been 'properly' marked. Nevertheless, even if he believed that the testimony showed the lateral had been marked by a paint daub on the adjacent sidewalk, there was sufficient evidence from which the trial judge could have found the Gas Company negligent in failing to 'properly' mark the pipe.

Falk also testified that the lateral at 931 West Peck Street was the only one in that block and apparently one of only a few along the whole line of excavation which had not been marked with a stake and the only one he had marked with paint. He testified that he did not use a stake there because the lateral ran alongside a gravel driveway and a stake would likely have been knocked over by passing cars. The Gas Company, however, acknowledges in its brief that there was a likelihood that the paint mark may have been obscured by loose gravel from the driveway.

The Telephone Company employees who had the job of exposing the laterals testified that they were not told, and did not expect, that a lateral might be marked only with a paint daub on the sidewalk, several feet from the path of the trench. They testified that they were looking only for stakes. Thomas E. MacDonald gave similar testimony. From the record as a whole, it appears that Thomas E. MacDonald and the Telephone Company employees failed to detect the lateral because they were expecting to find the laterals marked with stakes and not with paint marks several feet from the trench line.

There was testimony that the usual practice among other gas companies in that part of the state is to send their own crews to dig up and expose gas lines in areas where others are excavating. In this manner, the laterals could be definitely located for the cable layers. The Telephone Company follows that practice when there is underground work being done in proximity to its own cables. Under these circumstances, the trial court properly found the Gas Company negligent in failing to mark or expose the lateral so that its presence would have been reasonably apparent.

The trial judge also found the Gas Company negligent in failing to inspect its lines and repair any damaged laterals before the Telephone Company filled in the trench. The Gas Company argues that it was under no such duty to inspect, and contends that it was obligated only to check and repair such pipes as were reported by the excavators as having been struck.

The trial judge relied on Strohmaier v. Wisconsin Gas & Electric Co. (1934), 214 Wis. 564, 253 N.W. 798. In that case, a contractor, digging in close proximity to gas mains, severed a lateral, gas escaped, and an explosion occurred about thirty minutes later. The gas company was alleged to have been negligent in failing to have an employee readily available to shut off the gas in case of such a leak. On appeal, it was held that the trial court committed prejudicial error in excluding testimony that the gas company knew that the contractor had previously severed a number of other gas pipes during the course of the same job. This court stated, at page 568, 253 N.W. at page 800:

'Obviously circumstances might exist such as to make it the duty of the gas company, in the exercise of ordinary care, to have a man on the job or at immediate call for the purpose of turning off gas upon the breaking of a main or pipe. It is manifest that if the contractor frequently broke pipes in the progress of his work there was more reason for holding that ordinary care required the presence of a man on the job for the purpose stated than if he had been working several months without breaking any pipes at all.'

Strohmaier tends to support an argument that the Gas Company would have been negligent if it knew that the excavators were frequently striking its gas pipes and nevertheless failed to thereafter put an inspector on the job site. It is not, however, dispositive of the issue here.

In this case, the lateral at 931 West Peck Street was the first one struck by the trencher. Although a number of laterals were struck later in the job and were reported to the Gas Company, these subsequent strikes did not occur until after the work on West Peck Street was completed and the trench refilled. Hence, the issue is whether the Gas Company was negligent in failing to inspect the pipes on West Peck Street even though, at the time those pipes were exposed, it had no notice that the trenching crew was not proceeding with due care.

We conclude that the trial judge properly found the Gas Company negligent for failing to inspect its laterals on West Peck Street before they were reburied. The Gas Company was negligent in failing to send a man out to inspect the pipes when the cable had been laid and the trench was about to be refilled. In view of the extraordinary risks involved in an operation of this kind, the complete failure to inspect was unreasonable and constituted a want of ordinary care. ¹

Several jurisdictions hold that a gas company may be negligent if it fails to use ordinary care to inspect or supervise the work of others digging near its pipes. New Nueces Hotel Co. v. Sorenson (1934), 124 Tex. 175, 76 S.W.2d 488; Foster v. Capital Gas and Electric Co. (1928), 125 Kan. 574, 265 P. 81; Koplan v. Boston Gas Light Co. (1900), 177 Mass. 15, 58 N.E. 183; Aurora Gas Light Co. v. Bishop (1899), 81 Ill.App. 493; Koelsch v. Philadelphia Co. (1893), 152 Pa. 355, 25 A. 522; Butcher v. Providence Gas Co. (1878), 12 R.I. 149. The rule is an appropriate one, and we adopt it.

Since we conclude that the Gas Company was negligent in failing to inspect its pipes before they were reburied, it is therefore unnecessary to deal with its argument that the Telephone Company's failure to report striking the lateral was a superseding cause, which excused the Gas Company from liability for its earlier negligence in failing to properly mark the pipe. The negligence of both utilities operated concurrently, with the result that the damaged pipe was never repaired.

On the basis of the evidence, the trial court properly found the Gas Company to have been causally negligent. ²

2. Negligence of the Telephone Company

In arguing that the evidence fails to show that its agents were themselves guilty of any negligence, the Telephone Company attempts to disassociate itself from the trenching operation and portrays the trenching job as the sole responsibility of the MacDonalds. In fact, the overwhelming weight of the evidence demonstrates that Telephone Company employees were directly involved in every stage of the trenching operation and were themselves causally negligent in a number of respects.

It was undisputed that Telephone Company employees had been given the job of preceding the trenching machine on West Peck Street to dig out and expose the gas laterals. Thomas E. MacDonald relied on these employees to expose the laterals, so that he could raise his machine over the pipe and continue on the other side. The trench was then dug out by hand around the pipe. It was the responsibility of the Telephone Company employees to reveal the laterals to Thomas E. MacDonald. The Telephone Company employees failed, however, to expose the particular lateral in question, and it was this failure that was responsible for the trenching machine's striking the pipe. It was pointed out above that...