E. L. Chester Co. v. Wis. Power & Light Co.

• Decision Date: 11 April 1933
• Citation: 211 Wis. 158,247 N.W. 861
• Parties: E. L. CHESTER CO. v. WISCONSIN POWER & LIGHT CO.
• Court: Wisconsin Supreme Court

211 Wis. 158

247 N.W. 861

E. L. CHESTER CO.

v.WISCONSIN POWER & LIGHT CO.

Supreme Court of Wisconsin.

April 11, 1933.¹

Appeal from a judgment of the Circuit Court for Rock County; George Grimm, Circuit Judge. Reversed.

Action commenced by E. L. Chester Company, plaintiff, August 11, 1931, against the Wisconsin Power & Light Company, defendant, to recover damages resulting from a gas explosion and fire. From a judgment entered in favor of the plaintiff and against the defendant in the sum of $96,000 on the 28th day of December, 1931, the defendant appeals.

WICKHEM, J., dissenting.Schubring, Ryan, Clarke & Petersen, of Madison, and H. W. Adams, of Beloit, for appellant.

Arnold & Johnston, of Beloit, and Wolfe & Hart, of Milwaukee, for respondent.

OWEN, Justice.

On the morning of December 5, 1930, a gas main located on the south side of Grand avenue, just outside the sidewalk curb, in the city of Beloit, sprang a leak. This was discovered at about 4:45 a. m. A policeman patrolling the beat noticed no gas at that point at 4:00 o'clock. At about 6:04 a. m., there was a terrific explosion in a store known as the Anderson jewelry store, located immediately across the sidewalk from the point of the leak. The store was wrecked, the front end lying out on the sidewalk. “There was a great big opening where there used to be a building.” A section of the roof was blown 150 feet from the building, and an iron beam weighing 1,280 pounds was thrown out into the street clear of the sidewalk. Fire resulted from the explosion, destroying the Anderson jewelry store, which was owned by the plaintiff, as well as three other stores to the west, two of which were owned and occupied, and the other occupied, by the plaintiff, all in conjunction as a retail mercantile store. In addition, two stores to the east of the Anderson jewelry store were also consumed by the fire.

The leak in the gas main was the result of a defective valve therein located at the bottom of a manhole. Between the time of the discovery of the leak and the explosion the atmosphere about this manhole was strongly charged with gas. One of the employees of the company, who was summoned to the scene, declared that there was enough gas escaping there to “blow up the town.” He did not dare to attempt to remove the manhole cover for fear that the friction resulting from such an attempt would ignite the gas.

Approximately 3 1/2 feet from the manhole, a concrete boulevard light post was set solidly in the concrete street sidewalk. This post was of solid concrete, except for a two-inch hollow through its center, extending from a point in the sidewalk to its top, which hollow was provided for the accommodation of the electric cables. The fixture upon the top of this post was demolished by the explosion, and, immediately following, a flaming gas jet spurted from the top of the post. An employee of the defendant stated, during the excitement following the explosion, that the boulevard light set off the gas. This circumstance indicates that the escaping gas permeated the soil adjacent to the manhole.

The distance from the gas main to the outside foundation wall of the Anderson store was the distance across the sidewalk, approximately 20 feet. There was no proof of any kind that there was any other explosive in the store or in that vicinity.

The jury found that the explosion resulted from a leakage of gas from a broken valve in defendant's gas main which entered the Anderson store. The appellant challenges the sufficiency of the evidence to sustain this finding.

It is pointed out that there is an entire lack of evidence to show that the leaking gas penetrated the earth under the sidewalk to the Anderson store, that the burden rested upon the plaintiff to prove definitely the source and cause of the explosion, and that, under all the circumstances, the jury could but guess or conjecture that the explosion resulted from the leaking gas.

[1][2][3][4][5] The rule, thoroughly established and recognized, to the effect that where the evidence discloses that the proximate cause of an accident may as well be attributed to a nonactionable as to an actionable cause, the jury will not be permitted to guess or conjecture as to the cause of the accident, is invoked, to which proposition Hyer v. City of Janesville, 101 Wis. 371, 77 N. W. 729;Quass v. Milwaukee G. L. Co., 168 Wis. 575, 170 N. W. 942;Rost v. Roberts, 180 Wis. 207, 192 N. W. 38;Ennis v. Milwaukee E. R. & L. Co., 202 Wis. 277, 232 N. W. 540; and many other cases, are cited and relied upon. This rule has no application here, because there is an absolute lack of evidence that the explosion could have resulted from any other cause. The evidence shows an explosion, a leaking gas main which surcharged the atmosphere and saturated the soil in that vicinity with gas, and affords no reason whatever to suppose that the explosion resulted from any other explosive material. We think it was not only a permissible but a very natural inference that the explosion in question resulted from the escaping gas from the broken gas valve in the defendant's gas main, and that the finding of the jury to this effect cannot be disturbed in the absence of other evidence in the case showing that such a result was physically or scientifically impossible.

Defendant introduced much expert testimony to show that the explosion within the store could not have resulted from the escaping gas. One line of such testimony tended to show that it was impossible for the gas to penetrate the soil under the sidewalk during the time intervening between the occurrence of the leak and the time of the explosion. This conclusion of the experts was based upon the assumption that the earth below the sidewalk was of a solid and stable character, and of one of either of two assumed compositions. According to this testimony it would require from six to nineteen hours for the gas to penetrate the intervening distance between the point of the leak and the outside wall of the Anderson store building. However, other testimony in the case showed that the earth beneath the sidewalk was not solid in character, but that it was characterized by fissures, chasms, and voids, which would afford no opposition whatever to the penetration of the gas.

In the light of such evidence, the expert testimony upon which defendant relies was not of a character rendering it impossible for the jury to find that the escaping gas did find its way into the Anderson building within the time intervening between the happening of the leak and the explosion.

Another line of expert testimony relied upon by the defendant is to the effect that the character of the explosion indicates that it was not a gas explosion, but was the result of an explosion of a much higher explosive quality. While defendant's expert testimony was to the effect that the damage resulting from this explosion could not have been accomplished by a mere gaseous explosion, this testimony was met by other expert testimony on behalf of the plaintiff to the effect that the resulting damage was well within the power of a gaseous explosion. Upon this issue, therefore, a plain jury question was presented. It was within the province of the jury to determine whether the conclusions of plaintiff's or defendant's experts were correct.

The testimony in the case is very voluminous, and this opinion could be greatly extended if an attempt were made to review every detail thereof. Suffice it to say that appellant's contentions in this respect have been thoroughly considered and weighed, the main outlines of which have been stated, and our conclusion is that a court would be wholly unjustified in disturbing this finding of the jury. A review of the evidence shows an abundance of support for the conclusion that this explosion resulted from the only explosive substance known to be in that vicinity, and that, under the circumstances of the proof in the case, to set aside this finding would be rather shocking to common sense.

We proceed with the further consideration of the case, therefore, upon the assumption that the explosion and the resulting fire were occasioned by gas escaping from defendant's gas mains due to a broken valve.

One, and perhaps the principal, question of negligence relied upon to recover, was the improper construction of the gas mains. The system of construction of the gas mains was of the type known as the “rigid system.” A ditch was dug and a steel pipe was placed in the ditch consisting of about forty-foot lengths. These lengths were welded in the ditch. They were placed upon wooden blocks put under the pipe, and dirt was tamped in solid underneath the pipe with shovels. The main followed the contour of the street. Where a curve occurred in the street, the pipes were consolidated; possibly the pipe was cut on the bias and then welded. At stated distances valves were inserted in the main, which valves were located in manholes. There were no so-called “absorption joints” located anywhere in the system. The safety of the system depended entirely upon its tensile strength to protect it from temperature and local stress tension.

The testimony of the defendant was to the effect that this was a method of construction adopted by all gas companies constructing plants in climatic conditions similar to those at Beloit.

There was testimony that up to 1916 the ordinary construction of gas plants included an “absorption joint” in close proximity to a valve to absorb the tension resulting from either climatic conditions or local stress, but that since 1916 the installation of such valves had been eliminated by all gas companies for the reason that their presence resulted in underground gas leakage.

This is believed to be a fairly accurate summary of the defendant's testimony with reference to the proper method of construction.

However, plaintiff introduced testimony, notably that of one Robert Cramer, who testified to vast experience as...