Quass v. Milwaukee Gaslight Co.

• Decision Date: 04 March 1919
• Citation: 168 Wis. 575,170 N.W. 942
• Parties: QUASS v. MILWAUKEE GASLIGHT CO.
• Court: Wisconsin Supreme Court

168 Wis. 575

170 N.W. 942

QUASS

v.MILWAUKEE GASLIGHT CO.

Supreme Court of Wisconsin.

March 4, 1919.

Appeal from Circuit Court, Milwaukee County; William B. Quinlan, Judge.

Action by Otto Quass against the Milwaukee Gaslight Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss complaint.Miller, Mack & Fairchild, of Milwaukee, for appellant.

Julius E. Kiefer, of Milwaukee (Horace B. Walmsley, of Milwaukee, of counsel), for respondent.

KERWIN, J.

This action was brought to recover for personal injuries and loss of property occasioned by an explosion in February, 1917, causing a fire in the dwelling house of one Mrs. Henn, where plaintiff roomed and boarded, at No. 1129 Twenty-First street, in the city of Milwaukee. The dwelling house in question was a two-story building, the first floor being occupied by Mrs. Henn and the second floor rented. Gas was conducted from the street main into the basement by a single service pipe.

The jury found that gas escaped into the basement from pipes or appliances under the defendant's control, and that the explosion resulted from such escape of gas.

[1] The main contention of the appellant is that the findings of the jury are unsupported by the evidence, and that a verdict for defendant should have been directed. Plaintiff testified that when he opened the door leading to the basement with a lighted lamp in his hand the explosion occurred. The uncontradicted evidence shows that the building in question was a two-story building resting upon posts, the basement being merely boarded up; that there was one service pipe leading from the street connected to two meters one for each floor; that the explosion occurred on Monday morning; that there was no noticeable odor of gas in the house Sunday at 10 a. m.; that no proof as to presence or absence of gas odor in any part of the basement after Sunday at 10 a. m. was made, and no noticeable odor of gas on the first floor Sunday evening at 8 o'clock; there is no proof as to when the gas began to escape; that there was a strong stench of gas on the first floor at 3 o'clock Monday morning, and the explosion occurred about 3:20; that the only way gas could have escaped into the basement was through 5 feet of gas pipe owned and controlled by defendant, or from 180 feet of house piping not under the control of the defendant; that the outer walls of the first floor were practically all torn out by the explosion, and the outer walls of the second floor and basement not so seriously injured by the explosion. One Poehl, an employé of the defendant, testified that on Saturday at noon before the explosion he turned off the upstairs meter, the tenants on the second floor having moved out, but that he did not touch the downstairs meter. The weather at the time of the explosion was extremely cold, the thermometer being about eight below zero.

[2] A careful examination of the record convinces us that there is no proof showing, or tending to show, that the gas escaped from any gas pipe or appliance under the control of the defendant, and that no negligence whatever on the part of the defendant was shown. Counsel for respondent does not claim that there is any direct proof, but insists that the jury had a right to infer from all the facts and circumstances in the case that the gas escaped from appliances under the control of the defendant, and that the doctrine of res ipsa loquitur applies. There is no basis in the evidence for such contention. To hold that this verdict can be sustained on the evidence is simply to allow the jury to find on mere conjecture, and it is well settled in this...