Mattson v. Central Electric & Gas Co.

• Decision Date: 17 May 1949
• Docket Number: No. 13705.,13705.
• Parties: MATTSON v. CENTRAL ELECTRIC & GAS CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

174 F.2d 215 (1949)

MATTSON v. CENTRAL ELECTRIC & GAS CO. et al.

No. 13705.

United States Court of Appeals Eighth Circuit.

April 11, 1949.

Rehearing Denied May 17, 1949.

COPYRIGHT MATERIAL OMITTED

William L. Walker, of Lincoln, Neb. (Max G. Towle, of Lincoln, Neb., on the brief), for appellant.

Max Kier and R. O. Williams, both of Lincoln, Neb., for appellees.

Before GARDNER, Chief Judge, and WOODROUGH and RIDDICK, Circuit Judges.

GARDNER, Chief Judge.

This is an appeal from a judgment for defendant entered on a directed verdict. The action was one brought by C. Russell Mattson as Administrator of the Estate of William Brehm, deceased, to recover damages for the death of William Brehm by the alleged wrongful act of the Central Electric & Gas Company under the death statute of the State of Nebraska.

At the time of receiving the injuries from which he later died, William Brehm was employed as a custodian or janitor in the Capitol School Building in Lincoln, Nebraska. On December 19, 1945, while so employed, there was an explosion which blew him out of the furnace room of the school building and inflicted bruises and burns upon him from which he later died. The explosion was caused by escaping natural gas. He is survived by his widow and three minor children. It was plaintiff's claim that the explosion resulting in the death of William Brehm was caused by gas which escaped from the gas pipes serving the Capitol School Building, through the negligence of the Gas Company in that the Company failed properly to inspect and keep in repair the gas pipes conveying the natural gas to the school building.

Plaintiff seeks reversal on substantially the following grounds: (1) the court erred in directing a verdict for the defendant Gas Company because it failed to apply the substantive law of the State of Nebraska; (2) the court erred in deciding as a mater of law that actual notice of defect in supply pipe or of escaping gas was necessary before the Gas Company had a duty of inspecting, detecting and repairing a gas leak or defect in the supply line which extended from the curb or street to the meter in the school building; (3) the court erred in deciding as a matter of law that the Gas Company was not required to maintain an efficient system of inspection under the law of the State of Nebraska and that it had no duty to use due and reasonable care in inspection of its supply pipes and lines to insure reasonable promptness in discovery of leaks that may occur, and said issue should have been left to the jury; (4) the court erred in deciding as a matter of law that even though the Gas Company's predecessor installed the supply pipes and line from its main to the School District's meter at the School District's expense, the supply pipes and line were not a part of the Gas Company's system and that it owed no duty to care for its natural gas after it left its main.

As has been observed, the judgment appealed from was entered in favor of the defendant on a verdict directed by the court at the close of all the evidence. To warrant the direction of a verdict the evidence must be such that all reasonable minds can come to only one conclusion on the facts. When minds may reasonably differ as to what the verdict should be on the evidence, the cause should be submitted to the jury. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720.

As the court directed a verdict in favor of the defendant, we must view the evidence in a light most favorable to the plaintiff and accept all evidence favorable to the plaintiff as true and as proving all facts which it reasonably tended to prove, and plaintiff is also entitled to the benefit of all inferences fairly deducible therefrom. Viewing the evidence in this light, the jury might reasonably have believed that about twenty-seven years prior to the time of the catastrophe causing the death of plaintiff's decedent, defendant's predecessor installed a gas service line connected with its gas line and extending from the street curb line to the Capitol School Building, in which building it installed a gas meter. Since that time defendant and its predecessor have used this service line for conveying its gas to the meter in the Capitol School Building. The Gas Company is a public service company engaged in supplying and distributing natural gas to the inhabitants of the City of Lincoln, Nebraska. The School District paid the Gas Company for the material and labor in installing this service line, the material being selected by the Gas Company. The pipe was black iron or steel pipe. The School District was a customer of the Gas Company and the gas supplied to the school building was passed through a meter belonging to the Gas Company as it was delivered to the School District. The pipe used had a servicable life of from ten to fifteen years. From the time of its installation to the time of the explosion, this service pipe was not dug up and inspected, nor otherwise inspected, except that there was a superficial inspection of the service pipe made by the Gas Company once or twice in the spring of each year or along in the summertime. The inspection consisted of an examination of the grass or the top surface of the ground under which the pipe was laid. Repairs to the service lines, if any, were made by the Gas Company and under no circumstances would the Gas Company permit an independent plumber or any other person to make such repairs. The service line was laid under the school yard which was open ground, accessible at any point, so that the Gas Company had an opportunity to make any inspections or repairs desired. Investigation and inspection made subsequent to the explosion disclosed that portions of the service pipe had become rusted, corroded, decayed, porous and perforated with holes, which permitted the natural gas to escape so that it percolated, seeped and traveled to the coal bins of the Capitol School Building and accumulated in the coal basement and exploded, causing plaintiff's decedent's death.

The trial court was of the view that as a matter of law defendant had no duty to inspect the service line connected with or extending from the street curb to the school building and was not liable because of the lack of actual notice of the defects in the service line.

The governing substantive law is that of the State of Nebraska. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. We do not believe that the Supreme Court of Nebraska has squarely passed upon the law issue presented by this case in any gas case. The court has, however, had before it somewhat analogous situations and made some pronouncements which may not have been essential to the determination of the issues, but "Considered dictum of that court should not be ignored when a federal court is attempting to construe or ascertain the meaning of the local law, whether it be the state statute or the State Constitution." Badger v. Hoidale, 8 Cir., 88 F.2d 208, 211, 109 A.L.R. 798. See, also: Yoder v. NuEnamel Corp., 8 Cir., 117 F.2d 488; Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610. The Nebraska cases most strongly urged upon our attention are Fonda v. Northwestern Public Service Co., 134 Neb. 430, 278 N.W. 836; Fonda v. Northwestern Public Service Co., 138 Neb. 262, 292 N.W. 712; Tarkington v. Northwestern Public Service Co., 138 Neb. 278, 292 N.W. 720; Harms v. City of Beatrice, 142 Neb. 219, 5 N.W.2d 287, 142 A.L.R. 239; Clough v. North Central Gas Co., 150 Neb. 418, 34 N.W.2d 862. All of these Nebraska cases involved personal injuries resulting from explosion or asphyxiation by gas, except the Harms case. The gas cases confessedly are all distinguishable in their facts from the instant case. In all of the cases the question of the liability of the Gas Company was held to be one of fact to be determined by the jury.

The Gas Company's liability is dependent upon negligence. Natural gas is of a highly dangerous character and it has a tendency to escape. It is therefore the duty of a public utility distributing natural gas for public use to exercise every reasonable precaution to avoid injury or death by the escape of gas while it is being carried through its pipes to the consumer. The care required to prevent injury or death must be commensurate with the danger which it is its duty to avoid. In the exercise of this degree of care it is the duty of the Company not only to install pipes and fittings of good material and workmanship but to see that the equipment when installed and laid is maintained in a reasonably safe condition. In Fonda v. Northwestern Public Service Co., 134 Neb. 430, 278 N.W. 836, 839, it is, among other things, said: "There can be no doubt that a gas company must exercise a high degree of care in dealing in a dangerous commodity, and a failure to do so may render it liable. There is no absolute standard of duty, but it should take every reasonable precaution. The ordinary householder depends upon the experience that the gas company possesses and it is its duty, when selling the commodity and equipment in which it is used, to see that the appliances are not only fit and proper, but also are in proper working order. Inspections otherwise would be useless."

In Fonda v. Northwestern Public Service Co., 138 Neb. 262, 292 N.W. 712, 718, a companion case growing out of the same accident, the court, among other things, said: "A company, engaged in the maintenance of such a dangerous fuel commodity, must have employees efficient in their line, and it is bound to anticipate injuries resulting from the use of such commodity. The Fondas had a right to trust the workmanship and service and rely exclusively upon the company's knowledge and skill in the installation and inspection of gas burners and equipment."

In Tarkington v. Northwestern Public Service Co., supra, which was a companion case of the Fonda cases, the pleadings, issues and evidence were...