Northwest States Utilities Co. v. Ashton

Decision Date23 February 1937
Docket Number1965
Citation65 P.2d 235,51 Wyo. 168
CourtWyoming Supreme Court

Rehearing denied July 6, 1937.

ERROR to the District Court, Sheridan County; JAMES H. BURGESS Judge.

Action by W. L. Ashton against the Northwest States Utilities Company, a corporation. Judgment for plaintiff, and defendant brings error. Petition for rehearing denied. See same plaintiff v. Brouilette in this volume.

Judgment affirmed.

For the plaintiff in error there was a brief by C. A. Kutcher of Sheridan, Wyoming, and oral argument by Mr. Kutcher.

It will be observed from the court's instructions to the jury that the general allegations of plaintiff's petition were considered to have been superseded by his specific charge of negligence, upon the authority of Wyoming Coal Mining Company v. Stanko, 22 Wyo. 110; also that his charge that defendants failed to odorize the gas was eliminated because no legal duty rested on the company to odorize its gas. Plaintiff's petition failed to specify that omission as a proximate cause of the injury, and no proof was made to support that allegation. The plaintiff must recover, if at all, upon proof of his specific charge of negligence. 45 C J. 1133. The legal principles applicable to gas cases are simple and are not disputed. A gas company is not an insurer against injuries from the escape or explosion of its gas, but is only liable for negligence. 28 C. J. 590. Negligence is never presumed. 45 C. J. 1148, 1267. Only reasonable care to maintain and keep in repair its equipment is required. 28 C. J. 590. The facts from which an inference may be drawn must be proved and cannot themselves be inferred. 45 C. J. 1265, 1272. Wright v. Conway, (Wyo.) 242 P. 1107; Martel v. Hall Oil Co., 36 Wyo. 166; Rosson v. Hylton, (Wyo.) 22 P.2d 195; Tisthammer v. Union Pac. Ry. Co., 41 Wyo. 382; McFarland v. Ref. Co., 60 L.Ed. 899; Western Ry. Co. v. Henderson, 73 L.Ed. 884. The rule against disturbing verdicts given on conflicting evidence will not apply where the verdict is clearly erroneous or against the great weight of evidence. O'Brien v. Chinquy, 2 Wyo. 56; Williams v. Yocum, 37 Wyo. 432; 2 R. C. L. 197; St. Mary's Gas Co. v. Brodbeck, (Ohio) 151 N.E. 323; Woodburn v. Power Co., (Ky.) 174 S.W. 730; Union Investment Company v. Gas. Company, (Cal.) 141 P. 807. The presence of gas does not establish negligence. Qwass v. Company, (Wis.) 170 N.W. 942; Morrow v. Otis, (Mass.) 146 N.E. 363; Hernandez v. Gas Company, (Cal.) 2 P.2d 360; Reis v. Steam Company, (N. Y.) 28 N.E. 24; Taylor v. Natural Gas Co., (Mo.) 67 S.W.2d 107; Hepner v. Gas Co., (Okla.) 217 P. 438; Heinz v. Power Company, (Kan.) 105 P. 527; Torrans v. Electric Company, (Ark.) 115 S.W. 389; Glass Company v. Gas Company, (W. Va.) 59 S.E. 959; Pouder v. Natural Gas Co., (Penn.) 93 A. 1005; Moore v. Light Co., (W. Va.) 64 S.E. 721. The testimony of defendant's witnesses entitled defendant to a directed verdict. 66 A. L. R. 1536. There was not sufficient proof of notice to the company. The plaintiff in this case recovered on the theory that gas leaked somewhere in the building, and that defendant was notified thereof. If a leak did not exist, the giving of notice was useless and imposed no legal responsibility on the defendant. If a leak did exist at some unknown place, in the pipes or equipment of the consumer, or those of the company, then the plaintiff must prove by competent evidence that the company was notified of such leak in time to afford an opportunity to remedy the defect. 45 C. J. 1069; McEnaney v. Butte, (Mont.) 117 P. 893; Fallon v. R. Co., (Mont.) 200 P. 453; Davis v. Freisheimer, (Mont. ) 219 P. 236. There was a failure of proof under the allegations of plaintiff's petition. A portion of the equipment was owned and controlled by the company and the remainder comprising the "house line" was owned and controlled by the owner or occupants of the building, and as to them defendant owed no duty of inspection. Plaintiff's cause of action apparently was not intended to be predicated upon negligence requiring actual notice of a leak. 45 C. J. 1069; McEnaney v. Butte, (Mont.) 117 P. 893; Fallen v. R. R. Co., (Mont.) 200 P. 453; Davis v. Freisheimer, (Mont.) 219 P. 236. A plaintiff cannot allege one ground of negligence and recover on another. 45 C. J. 1133; 14 Ency. P. & P. 342, 22 Ency. P. & P. 568; Ry. Co. v. Buck, (Kan.) 44 P. 904. The point is properly raised by a specification that the evidence is insufficient to support the verdict. Forsell v. Copper Co., (Mont.) 100 P. 218. The court erred in overruling defendant's motion for a directed verdict and for judgment notwithstanding the verdict. Defendant is now entitled to a directed judgment. Sec. 89-2605, R. S. 1931; U. P. R. R. Co. v. Pac. Market Co., (Wyo.) 200 P. 108; Snowball v. Maney Bros., (Wyo.) 271 P. 875. The evidence in a case may be sufficient as against a motion for a directed verdict or a motion for judgment, notwithstanding the verdict, and yet justice may require a new trial. Hall Oil Co. v. Barquin, (Wyo.) 237 P. 255. The court erred in receiving testimony concerning smoke experiments under conditions unlike those at the time of the explosion. 22 C. J. 758, 759. These experiments were made at different seasons of the year and when direction and velocity of air currents also differed. The court erred in refusing defendant's requested instruction No. K. While contributory negligence was not pleaded by defendant it may be raised. C. B. & Q. R. R. Co. v. Cook, (Wyo.) 102 P. 657. The requested instruction was a clear statement of the law. 28 C. J. 603. The court erred in refusing to give defendant's requested instruction No. N, as to negligence and notice. The court erred in refusing to give defendant's requested instruction No. H, calling for proof of natural gas in the basement. By refusing to give that instruction, the jury was without any instruction on the law relating to different probabilities as to the cause of the explosion. The court erred in giving instruction No. 8, to which defendant excepted, there being a failure of proof under the pleading. The court erred in giving instruction No. 13, because it relates to permanent disfigurement, when no evidence of disfigurement exists in the case. There was no evidence as to the necessity of certain expenses incurred by plaintiff for doctors, hospital care and nursing, or the value of said items. 17 C. J. 915. The court erred in giving instruction No. 12, defining direct and circumstantial evidence, and in refusing defendant's requested instruction No. M. Tisthammer v. U. P. Ry. Co., (Wyo.) 286 P. 377. The court erred in giving instruction No. 1. In the Brouilette case, a companion case to this, the plaintiff, who was more seriously injured by the same explosion, was awarded $ 3,500.00. If the defendant is liable at all, the plaintiff should not recover a greater sum than was awarded to Brouilette. This court should direct the trial court to enter judgment in favor of the defendant, and if such prayer is denied, that the judgment be reversed and the cause remanded for a new trial.

For the defendant in error, there was a brief by R. E. McNally and John G. Hutton, both of Sheridan, and E. E. Enterline and Madge Enterline, both of Casper, and oral arguments by Messrs. Enterline and McNally.

We are in harmony with the principle that an inference cannot be based on another inference. But the inferences in this case were properly drawn by the jury from the facts and circumstances introduced in evidence. Such evidence disclosed that the explosion was caused by natural gas escaping in the basement. The evidence establishes that it was not caused by furnace gas. We are also in full accord with the Wyoming cases cited in the brief of plaintiff in error under the heading "Rules Concerning Sufficiency of Evidence," commencing on page 15 and ending at page 23 of said brief but we contend that a careful examination of said decisions will show that they do not support the points contended for by plaintiff in error. We also contend that the cases of St. Mary's Gas Company v. Brodbeck, 151 N.E. 323; Woodburn v. Union Light & Power Co., (Ky.) 174 S.W. 730; Union Investment Company v. Gas Company, (Cal.) 141 P. 807; National Sheet Metal Roofing Co. v. New York Telephone, (N. J.) 137 A. 409; Lodge v. Company, (Pa.) 58 A. 925, cited by plaintiff in error, are clearly distinguishable from the facts in the case at bar. The question of weight and credibility in this case was properly submitted to the jury. Hildebrand v. C., B. & Q. R. R., (Wyo.) 17 P.2d 651; Worth v. Worth, (Wyo.) 49 P.2d 649. An inference may be drawn from circumstantial evidence. Barham v. Whiting, (Cal.) 291 P. 173; Mah See v. Ins. Co., (Cal.) 213 P. 42. It was the duty of the defendant to respond promptly upon being notified that gas was escaping in the basement and to find the leak and repair it or shut off its gas, and this because the company was dealing with a dangerous substance and under all the authorities must be held to high degree of care. McClure v. Gas Company, (Ill.) 25 A. L. R. 250. It is contended by plaintiff in error that there was a failure of proof within the meaning of Section 89-1737, R. S. 1931. The following cases decided by this court might well be considered a complete answer to such contention. Kuhn v. McKay, 7 Wyo. 42; C. B. & Q. R. R. Co. v. Pollock, (Wyo.) 93 P. 847; Oviatt v. Hohnholtz, (Wyo.) 299 P. 1037; United Home Corp. v. Reed, (Okla.) 49 P.2d 212. Defendant company controlled the entire gas equipment in the building. After the explosion, its employees dismantled the meter and regulator and removed ten feet of the house service line in the paint room and painted the joints with white lead. The rule that the instrumentality...

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