Ehler v. Portland Gas & Coke Co.

CourtSupreme Court of Oregon
Writing for the CourtBefore McALLISTER; MILLARD
Citation352 P.2d 1102,223 Or. 28
Decision Date08 June 1960
PartiesJohn B. EHLER and Jessie Ehler, Appellants, v. PORTLAND GAS & COKE COMPANY, a corporation, Respondent.

Page 1102

352 P.2d 1102
223 Or. 28
John B. EHLER and Jessie Ehler, Appellants,
v.
PORTLAND GAS & COKE COMPANY, a corporation, Respondent.
Supreme Court of Oregon, Department 2.
Argued May 12, 1960.
Decided June 8, 1960.

Page 1103

[223 Or. 30] Thomas A. Huffman, Hillsboro, argued the cause for appellants. On the briefs were Schwenn, Brink & Huffman, Hillsboro.

Henry Gray and Gerald Norville, Portland, argued the cause for respondent. On the brief with Gerald Norville were Smith, Gray, Hill & Rodgers, Portland, and Hare, Sturgis & Burdett, Hillsboro.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and MILLARD, JJ.

[223 Or. 31] MILLARD, Justice pro tem.

This is an appeal by plaintiffs from an order allowing defendant's motion for a judgment notwithstanding the verdict and granting defendant's motion for a new trial and from an order nunc pro tunc allowing a motion for new trial. The verdict of the jury in the sum of $13,128.50 resulted from the trial of an action wherein these plaintiffs were claiming damages for the burning of their home as a result of the escape of gas from piping owned by defendant located on plaintiffs' property.

For their first assignment plaintiffs contend that the trial court erred in allowing the entry of an order granting a judgment notwithstanding the verdict and a new trial. We will first deal with that portion relating to the judgment notwithstanding the verdict. A motion for judgment n. o. v. admits the truth of the prevailing parties' evidence and every favorable inference that may be drawn therefrom, as well as every inference favorable to the prevailing party as may be drawn from the evidence of the party who, by his motion, seeks such judgment. United Finance Co. v. Kliks, 210 Or. 288, 291, 310 P.2d 1103. It is, therefore, incumbent upon us to examine the evidence in the light most favorable to plaintiff, having in mind the issues tendered by the pleadings. The complaint, after alleging

Page 1104

the marital relationship of plaintiffs, the corporate existence of defendant, and the ownership by plaintiffs of the real property, states that plaintiffs' 14-room house and contents burned, being of the value of $13,128.50, and that the direct and proximate cause of the fire and resulting damage was the negligence of defendant in three particulars as hereinafter set forth:

'(1) That more than two years prior to the fire [223 Or. 32] in question, the exact time being to these plaintiffs unknown, a gas pipe had been installed by the defendant company, running from the county road to the edge of the plaintiff's house for the purpose of directing manufactured gas thereto, and that from the said pipe, a stand pipe was erected at right angles and rose above the ground, with a shut-off valve therein; that the said stand pipe was capped, but that the pipe itself and the valve were defectively installed, so that at the time of capping, the exact time being to these plaintiffs unknown, manufactured gas from the defendants' gas line, consistently escaped therefrom in quantities sufficient to constitute an extreme hazard.

'(2) That in the early morning hours of September 22, 1952, the Ehler residence caught fire, the exact source thereof being to these plaintiffs unknown, but that the gas escaping from the stand pipe above mentioned, immediately caught fire and played upon the side of and underneath the house of the plaintiffs, so that a continuous torch of flame was applied thereto, and caused the said structure to burn to the ground.

'(3) That the defendant was negligent in not maintaining its service line to the hereinabove described property of the plaintiffs after having received notice that gas was escaping from in and around the standpipe located on the premises of plaintiffs, which said standpipe was owned and under the control of the defendant.'

Plaintiffs then allege that as a sole and proximate result of this negligence of defendant, plaintiffs were damaged $13,128.50. Defendant's answer consists of a denial, with the exception of admissions to the effect that the house and contents burned to the ground and that two years prior to the fire a gas pipe has been installed by defendant, running from the county road to the edge of plaintiffs' house, for the purpose [223 Or. 33] of directing manufactured gas to said house, and that from said gas pipe a stand pipe was erected at right angles and rose above the ground with a shut-off value thereon and that said stand pipe was capped and that in the early morning hours of September 22, 1952, the residence caught fire at the time alleged. The defendant also set forth in its answer a plea of contributory negligence wherein it is alleged that plaintiffs were negligent in constructing part of the residence over the riser without having the gas disconnected, knowing that gas was escaping, if such was the fact, in failing to notify defendant of the construction, and in failing to shut off the gas line and disconnect it. This affirmative defense was by agreement deemed denied by plaintiffs. It should be further noted that by stipulation it was agreed that the pipe and riser were the property of the defendant.

From the evidence it appears that plaintiffs bought the property before 1950. At that time plaintiffs, having a large family, started the construction of a new addition to the house so that at the time of the fire it was of the size alleged. At the northwest corner of the old dwelling was located the kitchen, which faced north, the north and south walls being about 24 feet long and the east and west walls about 16 feet wide. At the northwest corner of the kitchen and to the west thereof and outside was the riser heretofore mentioned. It was capped, the meter removed, and the valve which was about half way down the pipe was turned off by defendant at plaintiffs' request at the time construction of the new addition was commenced, since gas was no longer used in the dwelling. Plaintiff

Page 1105

John B. Ehler testified that thereafter he did not tamper with the valve, nor to his knowledge was it changed. Plaintiffs then constructed a new wing to the dwelling, 16 [223 Or. 34] feet by 60 feet, along the entire west side, placing a utility room as a part thereof to the west of the kitchen, the north wall being about 16 feet long. As a result, the riser was then slightly inside the line of the wall of the utility room about 6 or 8 inches and about a foot from the wall of the kitchen and slightly below the top of the foundation. The foundation system for the new construction was the same as the old, with concrete blocks or bricks as footings, and uprights on that and joists overhead. It was not established as to the direction the joists ran. As a result, there was, except for the uprights, a clear space under both the old and new portions of the house, varying from about 6 inches to 2 feet. The old house had siding extending from the joists to the ground. When the new addition was constructed, the old siding adjoining the new construction was removed so that air could circulate freely under the house. In addition, there were ventilators, one of which was open. The entire house as reconstructed was boarded up on the outside except that there was an open space near the riser, through which air could go to the outside. As stated before, a foot away was the kitchen where it subjoined with the utility room. The entire northwest corner of the kitchen contained wall cabinets on both the side next to the utility room and along the north wall about one-third of the length of the room. Then continuing along the north wall and next to the cabinet was a kitchen range. There was also a refrigerator in the northwest corner. Both the range and the refrigerator were served with electricity. There was no contention that the wiring was defective. The lights were still working after the fire started. In the southeast corner of the room was a hot water heater tank and sawdust burner with a hopper on it about 25 feet diagonally [223 Or. 35] from the gas pipe. The burner was bricklined and, from the diagram, had a door and a draft opening toward the north wall of the kitchen at a point about one-third or less from the west wall of the room. The sawdust hopper was filled and the burner going before the family went to bed and would ordinarily continue to burn past the time when the fire occurred.

There was ample evidence that odoriferous gas was escaping from a point around the riser and had been from about 1950 when plaintiffs started construction of the house and before the meter was removed and continued uo to the time of the fire, although a former owner who was defendant's witness did not detect it. Both the plaintiffs, as well as others, smelled the escaping gas. No one, however, stated positively that the gas could be smalled inside the house. It further appeared that the gas came from below the ground, and when the ground was saturated with water it would 'bubble' up in an area 3 or 4 feet in circumference around the riser and that it would burn. There was evidence that plaintiffs had several times notified the gas company to turn off the gas, which was not done, but contrary to plaintiffs' contention there is no evidence in the record that plaintiffs ever actually told defendant that gas was escaping. It further appeared that this particular gas was lighter than air, and, hence, would rise until it came into contact with something that stopped it. In connection with this it appears that gas, when trapped between floor joists, will follow the joists until it reaches an 'opening' through the floor which will permit it to rise. It was further elicited that gas at ordinary pressures will not ignite from an ember such as on a burning cigarette, but only from an arc or flame and that if it does ignite, an explosion in a room will not result unless [223 Or. 36] the gas is confined and reaches a concentration of at least 5%. It also appeared...

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11 practice notes
  • Roskop Dairy, L.L.C. v. GEA Farm Techs., Inc., No. S–14–115
    • United States
    • Supreme Court of Nebraska
    • December 4, 2015
    ...See id.43 Id.44 Wilgro, Inc. v. V owers & Burback, 190 Neb. 369, 208 N.W.2d 698 (1973).45 Id.46 See Ehler et ux v. Portland Gas & Coke Co., 223 Or. 28, 352 P.2d 1102 (1960).47 Pendleton Woolen Mills v. Vending Associates, Inc., supra note 21.48 Id. at 50, 237 N.W.2d at 102.49 Pendleton Wool......
  • Kaufman v. Fisher
    • United States
    • Supreme Court of Oregon
    • May 23, 1962
    ...355 P.2d 601 (1960); Eitel v. Times, Inc., 221 Or. 585, 352 P.2d 485 (1960). Cf., Ehler et ux. v. Portland Gas & Cake Co., 223 Or. 28, 352 P.2d 1102, 353 P.2d 864 (1960). See, 2 Harper & James, Law of Torts, § 19.4, pp. 1068-1069 (1956); James, Jury Control Devices, 47 Va.L.Rev. 4 The doctr......
  • American Cas. Co. v. Propane Sales & Service, Inc., No. 6477
    • United States
    • Nevada Supreme Court of Nevada
    • September 14, 1973
    ...The cause of ignition was immaterial if respondent's negligence was a proximate cause of the fire. Ehler v. Portland Gas & Coke Company, 223 Or. 28, 352 P.2d 1102 (1960); McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89, 135 N.E. 43 (1922); Moore v. Lanier, 52 Fla. 353, 42 So. 462 (1906......
  • Clubb v. Hanson
    • United States
    • Supreme Court of Oregon
    • June 12, 1975
    ...See Schweiger et ux v. Solbeck et ux, 191 Or. 454, 466, 230 P.2d 195 (1951), and Ehler et ux v. Portland Gas & Coke Co., 223 Or. 28, 38, 352 P.2d 1102, 353 P.2d 864 (1960). We hold that there was sufficient circumstantial evidence to support such a finding by the jury in this case. Cf. Eite......
  • Request a trial to view additional results
11 cases
  • Roskop Dairy, L.L.C. v. GEA Farm Techs., Inc., No. S–14–115
    • United States
    • Supreme Court of Nebraska
    • December 4, 2015
    ...See id.43 Id.44 Wilgro, Inc. v. V owers & Burback, 190 Neb. 369, 208 N.W.2d 698 (1973).45 Id.46 See Ehler et ux v. Portland Gas & Coke Co., 223 Or. 28, 352 P.2d 1102 (1960).47 Pendleton Woolen Mills v. Vending Associates, Inc., supra note 21.48 Id. at 50, 237 N.W.2d at 102.49 Pendleton Wool......
  • Kaufman v. Fisher
    • United States
    • Supreme Court of Oregon
    • May 23, 1962
    ...355 P.2d 601 (1960); Eitel v. Times, Inc., 221 Or. 585, 352 P.2d 485 (1960). Cf., Ehler et ux. v. Portland Gas & Cake Co., 223 Or. 28, 352 P.2d 1102, 353 P.2d 864 (1960). See, 2 Harper & James, Law of Torts, § 19.4, pp. 1068-1069 (1956); James, Jury Control Devices, 47 Va.L.Rev. 4 The doctr......
  • American Cas. Co. v. Propane Sales & Service, Inc., No. 6477
    • United States
    • Nevada Supreme Court of Nevada
    • September 14, 1973
    ...The cause of ignition was immaterial if respondent's negligence was a proximate cause of the fire. Ehler v. Portland Gas & Coke Company, 223 Or. 28, 352 P.2d 1102 (1960); McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89, 135 N.E. 43 (1922); Moore v. Lanier, 52 Fla. 353, 42 So. 462 (1906......
  • Clubb v. Hanson
    • United States
    • Supreme Court of Oregon
    • June 12, 1975
    ...See Schweiger et ux v. Solbeck et ux, 191 Or. 454, 466, 230 P.2d 195 (1951), and Ehler et ux v. Portland Gas & Coke Co., 223 Or. 28, 38, 352 P.2d 1102, 353 P.2d 864 (1960). We hold that there was sufficient circumstantial evidence to support such a finding by the jury in this case. Cf. Eite......
  • Request a trial to view additional results

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