Richey & Gilbert Co. v. Northwestern Natural Gas Corp.

• Decision Date: 24 February 1943
• Docket Number: 28885.
• Citation: 16 Wn.2d 631,134 P.2d 444
• Court: Washington Supreme Court
• Parties: RICHEY & GILBERT CO. v. NORTHWESTERN NATURAL GAS CORPORATION et al.

134 P.2d 444

16 Wn.2d 631

RICHEY & GILBERT CO. v. NORTHWESTERN NATURAL GAS CORPORATION et al.

No. 28885.

Supreme Court of Washington

February 24, 1943

Department 1.

Action by Richey & Gilbert Company against the Northwestern Natural Gas Corporation and others for damages caused by an illuminating gas explosion. Verdict was for plaintiff, and plaintiff's motion for an increased judgment notwithstanding the verdict was denied, and defendants appeal and plaintiff cross-appeals.

Affirmed.

Appeal from Superior Court, Yakima County; Robert J Willis, judge.

Snively & Bounds, of Yakima, and Ryan, Askren & Mathewson, of Seattle, for appellants.

Cheney & Hutcheson, of Yakima, for respondent.

MALLERY Justice.

The plaintiff, Richey & Gilbert Co., brought this action for damages to their building caused by a gas explosion, alleged to be due to the negligence of the defendants.

Judgment was entered on the verdict of the jury in the amount of $6,500. Defendants appeal and ask for a reversal of the judgment and for a new trial. Plaintiff cross-appeals from the denial by the court of a motion for an increased judgment notwithstanding the verdict of the jury. It does not ask for a new trial.

The building in question was owned by the respondent Richey &amp Gilbert Company. It was situated near the center of the Toppenish business district on land leased from the Northern Pacific Railway Company, under a long term lease, which included the alley across which the Gas Company's gas pipe extended, connecting the building with the larger gas mains.

The building was bounded on the south by Toppenish Avenue, the main street of the city, on the east by the main line of the Northern Pacific Railway and on the west by the alley referred to. There were five stores or places of business situated in the front of the building on Toppenish Avenue. The remainder of the building was used as a storage warehouse for farm produce.

In October, 1940, the owners and officers of the respondent Richey & Gilbert Company decided to grade the alley in connection with other work of converting a portion of the building from a warehouse to store purposes. They authorized Mr. J. M. Immel, their attorney in Toppenish, to ascertain from the city officials whether the alley could be graded as a WPA project. Although the city had done some small amount of work in the past in maintaining and grading the alley, the city officials denied the request for the reason that the alley was on Northern Pacific property. They suggested also that the city did not have suitable equipment but that Yakima County did. Through the county engineer, Mr. Immel contracted orally to have the work done at Richey & Gilbert's expense by a county grader, operated by a county employee.

The county grader which was sent to do the work included a scarifier to break the hard packed surface. The scarifier had large teeth for this purpose which could not, according to the testimony, penetrate to exceed six inches beneath the surface. Before much of any work had been accomplished, the teeth of the scarifier struck a buried pipe. It developed later that this pipe was a 2 inch main of the gas company's, and that the scarifier had pulled and bent the pipe, breaking the connection some distance away at the elbow where the service line entered the Richey & Gilbert building, permitting the gas to pass through the aperature where the pipe had been pulled out of the foundation, allowing gas to spread around in and under the building.

The pipe was struck by the scarifier at about 10 A.M. Not long after 11 A.M. one of the tenants of the building smelled gas and the gas company was called by phone and notified that there was a gas leak. The appellant gas company immediately sent over a service man, Roy Snyder. He had been supplied by the appellant company with an insulated safety flashlight for use in working around gas leaks. The expert testimony showed that proper practice requires the use of such special safety flashlight, the same being endorsed and recommended by the United States Bureau of Mines. However, he did not take this flashlight with him. He borrowed an ordinary flashlight from one of the tenants which was defective and could have ignited the gas. Another tenant warned him that he had better be careful when he went down in the basement because the leak was apparently a 'terribly bad one.' Snyder merely nodded and entered the building. He opened the trap door to the basement, started to let himself down, turned on the borrowed flashlight and instantly a terrific gas explosion occurred, killing seven people, severely injuring fourteen others, including himself and destroying a large part of the building.

There were a number of spark or flame producing devices in the building which might have caused the explosion, particularly several electric motors with automatic switches.

Appellants contend that the trial court erred in permitting the jury to consider the question of whether or not the gas was ignited by the allegedly defective flashlight.

There was ample expert testimony upon the subject, and the evidence that the flashlight ignited the gas, while not absolutely certain, was sufficient to warrant the submission of the question to the jury. Briggs v. United Fruit & Produce, Inc., 11 Wash.2d 466, 119 P.2d 687; St. Germain v. Potlatch Lumber Co., 76 Wash. 102, 135 P. 804; Senske v. Washington Gas & Elec. Co., 165 Wash. 1, 4 P.2d 523.

We think this point is of slight importance and in no event would constitute error since it has been held to be unnecessary that the case of the ignition in these circumstances be determined. 24 Am.Jur. Sec. 58, p. 701; Coffeyville Mining & Gas, Electric Light & Power Co. v. Carter, 65 Kan. 565, 70 P. 635; Bradley v. Shreveport Gas Co., 142 La. 49, 76 So. 230; McClure v. Hoopeston Gas & Elec. Co., 303 Ill. 89, 135 N.E. 43, 25 A.L.R. 250.

It is contended that it was error for the court to allow the jury to consider the lack of a malodorant in the butane gas used by the company. It is clear that the gas as used had odor, but the evidence warranted the belief that had a malodorant been used, or sufficient of it, the leak might have been discovered quickly and the explosion prevented. The butane gas used had little odor. Defendants own witness volunteered that no malodorant was used until after the explosion. It was not error to submit the question to the jury under proper instructions. The instructions must be presumed to have been correct since appellants set none out in their brief to which exceptions were taken.

Respondent relies most strongly upon the negligence of the gas company in laying and maintaining its gas mains across the alley too close to the surface of the ground.

In 1930 the city enacted an ordinance granting the gas company's franchise, Sec. 5 of which read: 'All pipe lines of the grantee shall be laid at least fifteen (15) inches below the surface of streets, alleys and avenues and at least such depth below the bottom of all drain ditches and in such manner as not to interfere with any present public or private drains, sewers, water mains, sidewalks, paving or other public improvements.'

With reference to this section of the ordinance the trial court instructed: 'You are instructed that a violation, if any, of the said requirements of the city ordinance of Toppenish is negligence, and if you find that there was such a violation thereof by the defendants and that the same was the proximate cause of the gas explosion in question, without any contributory negligence on the part of the plaintiff, then your verdict should be in favor of the plaintiff herein.'

Appellants argue that the giving of this instruction was error (1) because the alley was not an 'alley' within the meaning of the ordinance and franchise, (2) because the shallow depth at which the pipe was maintained was not the proximate cause of the explosion, and (3) because the court singled out the above quoted section 5 of the ordinance and refused to include section 8 of the ordinance and franchise hereinafter referred to.

Although situated upon Northern Pacific land leased to respondent, an examination of the evidence and the exhibits convinces us that this was a public alley. It is undisputed that the alley had been used continuously without restriction or interruption, not only by respondent, its tenants and patrons, but by the public generally for over thirty years. For many years, it was the principal means of ingress and egress to and from the Washington Nursery Company, which until 1931 conducted a very large nursery business a short distance north of the respondent's building. There is testimony that the alley was sometimes referred to as Ruby street and a street sign had been placed on respondent's building at the intersection of the alley and Toppenish avenue. This alley connected at right angles with another alley and so gave a through route from Toppenish avenue to Washington avenue, another principal street of the city.

In these circumstances it is well settled that this became and was a public alley either by (1) parol dedication or (2) by prescription and adverse uses for over ten years. Humphrey v. Krutz, 77 Wash. 152, 137 P. 806.

However, even if alley had been devoted to private use entirely, it was an alley within the meaning of the ordinance in 1931 when the gas main was laid, and had been for many years Before that. Nor had the situation changed since 1931.

A similar situation was Before the court in case of Strohmaier v. Wisconsin Gas & Electric Co., 214 Wis 564, 253 N.W. 798, 800. In that case court held the gas company was liable where the gas pipe in a private alley was struck by a mechanical trench digger which was being used in...