Strohmaier v. Wis. Gas & Elec. Co.

• Decision Date: 03 April 1934
• Citation: 253 N.W. 798,214 Wis. 564
• Court: Wisconsin Supreme Court
• Parties: STROHMAIER ET AL. v. WISCONSIN GAS & ELECTRIC CO. ET AL.

214 Wis. 564

253 N.W. 798

STROHMAIER ET AL.

v.WISCONSIN GAS & ELECTRIC CO. ET AL.

Supreme Court of Wisconsin.

April 3, 1934.

Appeal from a judgment of the Circuit Court for Waukesha County; C. M. Davison, Circuit Judge.

Action by Charles Strohmaier and Paula Strohmaier and others against the Wisconsin Gas & Electric Company and village of Pewaukee to recover damages resulting from a gas explosion, commenced April 19, 1932. From a judgment of nonsuit entered May 6, 1932, in favor of both defendants, the plaintiffs appeal.

A general contractor pursuant to contract with the defendant village was laying water and sewer pipes and digging trenches therefor with a trench digger operated by power. The defendant gas company was maintaining gas mains and service pipes in the village and trenches dug by the contractor in general paralleled the gas mains of the company in close proximity. The Strohmaiers owned a building fronting on the main street of the village. The building was supplied with gas by the defendant company through a service pipe extending from the premises north to a public alley parallel with the street wherein the contractor was laying water and sewer mains. This service pipe was laid in a private alley owned by the Strohmaiers on which their said building abutted. The village directed the contractor to lay a water main down this alley to supply a fire hydrant to be located on the main street. Plans and specifications were on file with the village clerk showing the location of the mains to be laid under the contract. These plans did not include a water main down the alley, but under the contract the village had authority to order the contractor to do extra work of the kind being done in the alley. While digging the trench down the alley and when adjacent to the Strohmaier building, the contractor severed the gas service pipe leading into the building. It might properly be inferred from the evidence that gas from the severed pipe entered the building and caused an explosion, and the explosion and resulting fire destroyed the building. The building was insured against damage by fire by the plaintiff insurance companies and the insurers join with the Strohmaiers to recover their respective damages. No permission was procured from the Strohmaiers to lay the water main in their alley but the work of digging the trench down the alley had progressed from early morning to the time of the explosion at about 1:25 p. m., and the Strohmaiers were aware that it was being done and had not forbidden or protested against its progress. The explosion occurred about thirty minutes after the pipe was severed. The gas company's headquarters were at Waukesha, and the company did not maintain an office or a trouble man in Pewaukee. The company was not notified of the break until after the explosion. Mrs. Strohmaier testified that she tried to get the gas company's office by telephone when she became aware that gas was entering the house, but was unable to do so and that the explosion did not occur until about fifteen minutes after she made the effort. The plaintiffs claimed on the trial that the contractor had severed several other service gas pipes during the progress of the work, and that the defendant gas company knew this. The court refused to receive evidence of these facts. At the close of plaintiffs' case, each defendant moved for a nonsuit. The motions were granted and judgment of nonsuit was entered thereon. From this judgment, the plaintiffs appeal.

FAIRCHILD, J., dissenting.Raymond J. Cannon and Wolfe & Hart, all of Milwaukee (I. B. Padway, of Milwaukee, of counsel), for appellants.

Shaw, Muskat & Paulsen and Lines, Spooner & Quarles, all of Milwaukee (Charles B. Quarles and Maxwell H. Herriott, both of Milwaukee, of counsel), for respondents.

FOWLER, Justice.

The plaintiffs claim (1) that the defendant gas company was negligent in not having a man on the job or within ready call while the work of digging the trenches was progressing to turn off the gas in case of the breaking of service pipes by the contractor, especially in view of the frequency with which the contractor had theretofore severed service pipes; (2) that the court erroneously rejected evidence offered by the plaintiffs of the previous breaking of service pipes by the contractor; and (3) that the contractor was negligent in severing the service pipe connected with the Strohmaier building, and that as the work was being done for the village, the village is responsible under the doctrine of respondeat superior. It is also claimed that the negligence of the defendants in the respects stated proximately caused the explosion and the resulting injuries to the plaintiffs.

(1), (2) One of the grounds of negligence alleged in the complaint is that the gas company “failed to maintain an employee in and about the work to turn off the gas in the event that a gas main or gas pipe broke in the course of the work.” As bearing upon the defendant gas company's duty in this respect, Portland Gas & Coke Co. v. Giebisch, 84 Or. 632, 165 P. 1004, L. R. A. 1917E, 1092, is cited. That case holds that where a sewer was being laid parallel and in close proximity to gas mains from which service pipes led from the mains to residences at frequent intervals, the gas company owed its patrons the duty of patrol and inspection to protect them against the negligent...