Senske v. Washington Gas & Elec. Co.

• Decision Date: 02 November 1931
• Docket Number: 23428.
• Citation: 4 P.2d 523,165 Wash. 1
• Court: Washington Supreme Court
• Parties: SENSKE v. WASHINGTON GAS & ELECTRIC CO. et al.

4 P.2d 523

165 Wash. 1

SENSKE v. WASHINGTON GAS & ELECTRIC CO. et al.

No. 23428.

Supreme Court of Washington

November 2, 1931

Department 2.

Appeal from Superior Court, Pierce County; H. W. B. Hewen, Judge.

Action by William Senske against the Washington Gas & Electric Company and another. From the judgment for plaintiff defendant named appeals.

Affirmed.

Roberts, Skeel & Holman and Frank Hunter, all of Seattle, for appellant.

Henderson Carnahan & Thompson, of Tacoma, for respondent.

MAIN J.

This action was brought against the Washington Gas & Electric Company, a corporation, and W. B. Hoit, one of its local managers, for the purpose of recovering damages for tuberculosis which the plaintiff contracted from inhaling carbon monoxide gas, due to the negligence of the defendants. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff and against the Washington Gas & Electric Company for the sum of $18,000, and a verdict in favor of the defendant Hoit. The defendant against which the verdict was rendered moved for judgment notwithstanding the verdict, and, in the alternative, for a new trial. The motion for judgment notwithstanding the verdict was overruled, and the motion for new trial was overruled, conditioned upon the plaintiff's electing to take a judgment for $10,000, which he did. Judgment was entered for this amount, from which the Washington Gas & Electric Company appeals.

The facts may be summarized as follows: The appellant, Washington Gas & Electric Company, owned and operated a plant in the city of Tacoma for the manufacture of gas which was distributed to the inhabitants of that city and the cities of Olympia and Puyallup for domestic use, including lighting heating, and cooking. From the plant there was a pipe line to the city of Olympia and also to the city of Puyallup. Hoit was the Puyallup manager or superintendent, and had charge of the affairs of the company in that city. Edward Fredericks was what is called installation foreman in the same city. Joseph Harris was the shop superintendent of the appellant, and had charge of the distribution of the gas and the repair of the gas mains. The respondent and his wife resided in the city of Puyallup in an apartment, which contained three rooms and was approximately twenty by thirty feet, over the front end of a garage owned by the respondent. The apartment was heated by what might be termed a gas grate or radiant fire. Shortly Before midnight, January 21, 1930, Hoit checked the pressure gauge on the rear porch of his residence, and observed that the pressure was decreasing instead of increasing. He thereupon telephoned his observation to the Tacoma plant, and learned that Olympia had already notified Tacoma, and men were out looking for the trouble. Hoit was instructed to stand by, and, if he observed the pressure getting down pretty low, to again inform Tacoma. Shortly after midnight, Hoit inquired how conditions were, and was informed that the leak had been located about two miles from Tacoma and nine miles from Puyallup. Hoit visited the place where the break had occurred, and, upon returning to his home, informed Tacoma of what he had ascertained at the place of the break. He was thereupon instructed by Harris 'to get Mr. Fredericks and with the car proceed to notify people that had furnaces or pilot lights to apparatuses to turn them off, take care of them, and be ready in case the pressure should be gone altogether.' Puyallup has a population of approximately 7,000, and there were about 500 gas users. Hoit and Fredericks, at about 3:30 a. m., January 22d, started to notify the people that had furnaces or pilot lights and finished about 6:30 that morning. They did not notify any user except those mentioned, which was a comparatively small proportion of the 500. At about 5 or 6 o'clock in the morning the gas pressure ceased entirely, and after the break was repaired, it was resumed about twenty minutes Before 7.

The respondent and his wife had retired at about 1:30 a. m. on the night in question, with the radiant fire still burning. The weather was very cold at this time, being something like zero, or a little below. The windows of the apartment were frozen, and were left closed. A door therefrom, which opened into the loft at the back end of the garage, was also closed. In the room were three dogs owned by the respondent. A few minutes Before 7:30 a. m., the respondent and his wife were awakened by the dogs clawing at the bed clothing. At the time the room was filled with gas, and the respondent had breathed it to a considerable extent. His wife was less affected, owing to the fact that she slept with the bed clothing over her head. On the evening of that day a doctor was called, and thereafter the respondent was ill and unable to work, as he testifies, for a period of five or six weeks. Prior to this time he had been in good health. August 1, 1930, owing to his continued ill health, and being unable to operate his garage, he moved to a stump ranch. As above stated, the respondent, as the result of the poisoning, as shown by the testimony offered by him, contracted tuberculosis from which he was still suffering at the time of the trial.

The first question is whether the evidence was sufficient to take the charge of negligence against the appellant to the jury. The negligence charged in the complaint is that neither Hoit nor any other agent or employee of the appellant informed either the respondent or his wife of the gas being disconnected. Upon the trial it appeared that, when the break was repaired in the line, the gas pressure was resumed without informing the users of that fact. Illuminating gas is a dangerous thing when it is not under control, and it is incumbent upon those who deal in it as an article of merchandise to use care commensurate with its harmful nature. The degree of care must be such as an ordinarily prudent person would exercise under like circumstances in managing such an article. Sharkey v. Portland Gas & Coke Co., 74 Or. 327, 144 P. 1152, 145 P. 660; Memphis Consol. Gas & Electric Co. v. Creighton (C. C. A.) 183 F. 552; Sawyer v. Southern California Gas Co., 206 Cal. 366, 274 P. 544. Under the rule stated and the facts of the case now Before us, whether the appellant was guilty of negligence in failing to notify the respondent that the gas pressure had discontinued and in permitting the pressure to be resumed without notification was plainly a question of fact for the jury and not a question of law for the court. The case of Johnson v. Grays Harbor R. & Light Co., 142 Wash. 520, 253 P. 819, is upon different facts. There the cause was submitted to the jury and a verdict returned in favor of the defendant. That case is not authority which would support the contention that the trial court in the present case should have withdrawn the same from the jury because the evidence of negligence was not sufficient. The submission of the question to the jury was proper.

The next question is whether the jury having returned a verdict in favor of Hoit discharges his principal, the appellant. The cases of Doremus v. Root, 23 Wash. 710, 63 P. 572 54 L. R. A. 649, ...