Lieuallen v. Northern Utilities Co., 3036

• Decision Date: 27 February 1962
• Docket Number: No. 3036,3036
• Citation: 368 P.2d 949
• Parties: Perry K. LIEUALLEN, Appellant (Plaintiff below), v. NORTHERN UTILITIES COMPANY, Appellee (Defendant below), and State of Wyoming, through the Workman's Compensation Department ex rel. The Wyoming State Treasurer, Defendant below.
• Court: Wyoming Supreme Court

Page 949

368 P.2d 949

Perry K. LIEUALLEN, Appellant (Plaintiff below), v. NORTHERN UTILITIES COMPANY, Appellee (Defendant below), and State of Wyoming, through the Workman's Compensation Department ex rel. The Wyoming State Treasurer, Defendant below.

No. 3036.

Supreme Court of Wyoming.

Feb. 27, 1962.

Thos. J. Fagan, of Fagan & Fagan, Casper, for appellant.

Edward E. Murane, of Murane, Bostwick & McDaniel, Casper, for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER, and McINTYRE, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

Plaintiff sued defendant to recover damages for injuries to plaintiff allegedly sustained while he was engaged in duties of his employment by White Ditching Company when his employer was installing a gas transmission line for defendant. After defendant generally denied allegations of the complaint and plaintiff had answered defendant's interrogatories, both parties filed affidavits when defendant moved for summary judgment which was granted. Plaintiff appeals.

While the State of Wyoming appears in the action as a party defendant, its position in the case requires no discussion except perhaps to note that through its compensation department plaintiff received compensation for his alleged injuries as an employee of White Ditching Company.

Plaintiff claimed that at the time he suffered alleged injury he was operating a caterpillar side-boom track tractor engaged in installing defendant's gas transmission line; that this involved making a connection with a separate gas line which was under defendant's control; that defendant 'negligently and carelessly failed to notify plaintiff or plaintiff's employer or its agents, that the said separate gas line contained gas, liquid or fluid under pressure, and negligently and carelessly instructed the plaintiff's immediate employer, White Ditching Company or its agents to open a valve to the said separate gas line for the purpose of making a connection to said line, whereupon there was a loud, voluminous and dangerous escaping of gas, liquid or fluid under pressure from said separate gas line, and plaintiff, recognizing the danger that his running tractor created, and recognizing the explosion that could possibly result,' hastily jumped from the tractor he was operating to shut off its motor in order to eliminate the possibility of explosion and in so doing sustained an injury for which recovery was sought.

Winnowed to their essentials, the material allegations of the complaint are: (1) The pipeline was under defendant's control, (2) defendant negligently failed to notify plaintiff or his employer the line contained gas and fluid under pressure, (3) defendant negligently instructed plaintiff's employer to open the valve which released gas and fluid, and (4) plaintiff was thereby injured.

Plaintiff's answers to sixty-one interrogatories propounded by defendant added nothing of importance.

One affidavit submitted by defendant was that of the foreman of White Ditching Company under whom plaintiff was working. It stated White Ditching Company was engaged in cutting a ten-inch gas line owned by defendant in order to tie in a sixteen-inch line; that this made it necessary to 'blow down the 10"' line so as to remove all gas'; that to blow down the ten-inch line, a three-inch blow pipe was tapped into the top of the ten-inch line with enough of the three-inch pipe to come above the ground surface so that the gas under pressure would not blow dirt and to protect 'from anything that might come out of the pipe'; that before opening the valve affiant had plaintiff 'standing by with the side-boom cat--he was approximately 80' northeast of the blow-down pipe with his engine running'; that when the valve on the ten-inch line was opened 'it permitted gas to blow out of the 3"' blow-down pipe' with a loud noise; that the gas blew for approximately one minute, then a mixture of 'water and oil went up into the air in a spray umbrella formation', and the 'entire blow-down did not take over three to five minutes.' Affiant also said there was little or no danger in the operation and that 'usual and customary procedure' was followed; that 'many lines have condensation [water] and occasionally lubricating oil in the pipes', but affiant 'was surprised when the fluid blew out', some of which got on his clothes, but he was not frightened; that after the blow down, plaintiff used the side-cat boom and carried on his duties in an ordinary and normal manner, making no complaint to affiant, and plaintiff 'did not act in any way disabled or suffering any disability.' In addition, affiant said the president and part owner of White Ditching Company had instructed affiant to do that particular job and 'one of the plant personnel' told affiant the valves on the section were closed 'so we could blow down this particular section'; that 'once the valve is closed on the ends of the section then we are in charge of that section of pipe'; that the president of White Ditching Company would normally tell affiant what work was to be done and affiant would carry out the orders; that the president of White Ditching Company told affiant 'to make the tie in with the 10"' and 16"' line in the yard and left the operation to me', and the defendant's personnel told affiant that the valves on the ten-inch line had been shut. Finally this affiant said he did not 'consider this blow-down operation hazardous or...