Ewart v. Southern California Gas Co.

Citation46 Cal.Rptr. 631,237 Cal.App.2d 163
CourtCalifornia Court of Appeals
Decision Date23 September 1965
PartiesGary Lee EWART and Carolyn Delora Ewart, minors, by their Guardian ad Litem, Betty Joan Ewart, and Betty Joan Ewart, Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA GAS COMPANY a corporation, and Emsco Concrete Cutting Company of Los Angeles, a corporation, Defendants and Respondents. Civ. 27735.

Magana, Olney, Levy, Cathcart & Gelfand, Los Angeles, Ira J. McDonald, Downey, Ellis J. Horvitz, Los Angeles, for appellants.

Overton, Lyman & Prince and Fred S. Lack, Jr., Los Angeles, for respondent Southern California Gas Co.

James D. Garibaldi, Warren J. Lane and Abe Mutchnik, Los Angeles, for respondent Emsco Concrete Cutting Co.

KAUS, Justice.

Action for the alleged wrongful death of LeRoy Eugene Ewart, who died of carbon monoxide poisoning while working inside a thirty inch water pipeline which his employer, Macco Corporation ('Macco'), was then constructing under contract between it and the City of Long Beach.

Defendants are Southern California Gas Company ('Gas Company') and Emsco Concrete Cutting Company ('Emsco').

This appeal is from a judgment entered following a jury trial which resulted in a verdict in favor of both defendants.

For obvious reasons Ewart's employer, Macco, was not joined as a defendant, but as will appear its conduct was most material to the issues before the trial court and on appeal.

Although the evidence before the jury was lengthy, complicated, technical and by no means conclusive on any of the factual issues involved, a brief outline will suffice for a meaningful discussion of the alleged errors below.

The work on the waterline in question started in October, 1959. The water pipe was to be laid in a ditch which varied in depth from six to nineteen feet. After the pipe was laid in the ditch, it was backfilled and the backfill watered in order to obtain compaction. Thereafter, the backfill was further compacted by a caterpillar tractor and finally by a 'stomper', an air operated steel shoe, about sixteen by sixteen inches, which could strike with power equivalent to a blow of three to four tons, a force similar to a dropping of a five ton ball from a height of three feet. It could also be operated so gently as to crack walnuts and have something edible left over.

After the compaction operation was completed, a temporary asphalt paving was placed over the area of the ditch.

The ditch crossed various subsurface utility lines, including those owned and maintained by the Gas Company. To avoid damage to its lines, the Gas Company maintained a full time employee at the construction site for the purpose of locating and identifying all gas lines and a company supervisor visited the site daily. The Gas Company recognized that its purpose in identifying the gas lines was not only to protect its property, but also to safeguard members of the public, including workmen.

At intervals manholes were constructed along the water pipe which, when completed, were covered with asphalt paving. They were not airtight and it was possible for a gas which accumulated underneath the asphalt paving but could not penetrate it, to enter the water pipe through the manholes.

The stomping operation was, in part, subcontracted by the defendant Emsco. There is evidence that on October 30, 1959 Emsco's operator damaged a three-quarter inch service connection of the Gas Company which crossed the backfill being compacted at a depth of about four feet below the surface. Although the evidence on this point is by no means compelling, we hold that the trial court was correct in submitting the issue of Emsco's negligence to the jury as a question of fact.

The leak was not discovered until December 8 when gas bubbles were seen in puddles of water which had formed in the paving above the former excavation. When a Gas Company repair crew excavated to discover the leak, the gas escaped with such pressure as to create a dust cloud. The leak was promptly repaired, but the Gas Company estimated that between the time of the break on October 30 and the discovery of the leak, about eight hundred thousand cubic feet of gas had escaped.

There is substantial evidence that after the discovery of the leak the Gas Company acted negligently: although Macco was promptly notified of the leak, no information was given to it concerning the large quantity of gas which had escaped. The Gas Company performed certain tests to determine whether any other of its lines were damaged, but no attempt was made to determine what had happened to the eight hundred thousand cubic feet of gas which had escaped, such an investigation not being the Gas Company's routine; in particular, no tests were made in the water main, the construction of which was by then nearly completed.

The gas which had escaped was Methane, which is by nature odorless. Although the Gas Company adds an odorant before the gas is distributed to the public, this odorant can be filtered out if the gas passes through earth. Methane is lighter than air and will normally rise, but it will follow the path of least resistance. The record contains evidence from which it is inferable that the gas, prevented by the asphalt paving from escaping upward, spread through the backfilled construction ditch to the manholes and entered the water pipe in that fashion.

On December 17, 1959 deceased and the son of Macco's foreman were cleaning the inside of the water pipeline. They were last seen alive after they had emerged for lunch and signified their intention of continuing the cleaning operation in the afternoon. At about 12:30 p. m. a manhole cover moved and a pillar of smoke erupted from the manhole. At about 3:30 p. m. another Macco employee fainted inside of the pipe. A search for decedent and the foreman's son was then started. Other manholes were uncovered and a large ball of fire, following an explosion, came out of one of these manholes. Eventually decedent's body was found inside the pipe.

There was expert testimony that when Methane gas explodes, the explosion generates carbon monoxide. As stated, deceased died of carbon monoxide poisoning.

The record contains considerable evidence that Macco did not provide its employees a safe place to work and was negligent in other particulars. Without going into details, there was evidence of the following: 1. Macco permitted its men to smoke inside of the pipe even after it was aware of the leak. 2. Macco made no tests to determine the presence of gas. 3. Macco published no safety regulations. 4. Macco held no safety meetings. 5. Macco's employees were not instructed concerning precautions on the job; in particular no instructions against lighting matches were given. 7. No blowers were installed to ventilate the pipe.

The attack on the judgment is concentrated on two instructions on proximate cause and a series of instructions based upon a number of violations of construction safety orders by Macco.

The two instructions on proximate cause were BAJI 104-C (revised), 1 given at the request of Emsco and BAJI 104-C.2 2 requested by the Gas Company.

We believe that both instructions are erroneous and under the circumstances of this case prejudicially so.

The problem involved centers around the question of when the intervening act of a third person becomes a superseding cause of harm which would not have been suffered but for defendant's negligent conduct. The parties have briefed the case as if it involved only the problem of intervening negligent acts of third persons. The two quoted instructions, however, do not assume that the 'third person' of BAJI 104-C (revised) or the 'second actor' of BAJI 104-C.2 is negligent, at least as far as the determination of the 'first actor's' liability is concerned. Since Macco's conduct was obviously negligent, it seems proper to discuss the case on the basis argued, but it should be noted that nonculpable intervening conduct of a third person is even less likely to become a superseding cause, than negligent or criminal conduct. (Katz v. Helbing, 205 Cal. 629, 634, 271 P. 1062, 62 A.L.R. 825; Rest., Torts, § 442(e), (f).)

It is worth noting, perhaps, that one does not reach the issue of superseding cause until one is satisfied that the record supports a finding of negligence on the part of the defendant and a further finding that but for such negligence the accident would not have occurred. This, at least, has been the approach of our Supreme Court. (Mosley v. Arden Farms Co., 26 Cal.2d 213, 157 P.2d 372, 158 A.L.R. 872.) As the concurring opinion in that case argues, such an approach may be analytically wrong, because a finding that plaintiff's harm was due to a superseding cause, is, in reality, a finding that the cause which injured the plaintiff was not a part of the risk created by the defendant. The original Restatement of Torts has been criticized for first adopting Justice Cardozo's theory of risk in section 281 and then discussing various 'superseding causes,' which are, in truth illusory, in that the superseding causes in reality simply are not part of the undue risk created by the defendant. (Seavey, Mr. Justice Cardozo and the Law of Torts, 52 Harv.L.Rev. 372, 390, 391.) The criticism was recognized by the authors of Restatement of Torts, 2d, section 281, comment (h), but the old form was retained because 'in the past the court's generally have discussed the effect of intervening forces in terms of causation.' We note that the method of analysis of the legal problem presented by Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23 appears to be that of the concurring opinion in Mosley, rather than of the majority.

We are satisfied that the present record is ample to support findings on the issues of negligence and 'cause in fact,' both against the Gas Company and against Emsco....

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