Wilbur v. Schweitzer Excavating Co.

• Decision Date: 03 February 1967
• Docket Number: No. 36263,36263
• Citation: 148 N.W.2d 192,181 Neb. 317
• Parties: Charles W. WILBUR and Flossie G. Wilbur, husband and wife, Appellants, v. SCHWEITZER EXCAVATING CO., a Corporation, Victory Realty, Inc., a Corporation and Victor E. Larson, Appellees.
• Court: Nebraska Supreme Court

Page 192

148 N.W.2d 192

181 Neb. 317

Charles W. WILBUR and Flossie G. Wilbur, husband and wife, Appellants, v. SCHWEITZER EXCAVATING CO., a Corporation, Victory Realty, Inc., a Corporation and Victor E. Larson, Appellees.

No. 36263.

Supreme Court of Nebraska.

Feb. 3, 1967.

Syllabus by the Court

1. It is fundamental that in order to constitute actionable negligence there must be a duty or obligation which the defendant is under to protect the plaintiff from injury; a failure to discharge that duty; and damage resulting therefrom.

2. Ordinarily a purchaser of real estate is charged with notice of an easement only where its existence is apparent from an inspection of the premises or where he is charged with notice from the recording laws.

3. Upon the issue of negligence or contributory negligence, evidence of the ordinary practice or of the uniform custom, if any, of persons in the performance of acts under similar circumstances like those which are alleged to have been done negligently is generally competent evidence.

4. In the absence of knowledge either actual or constructive there is no duty on the part of a general contractor or an excavator employed by him to ascertain the existence of a gas service pipeline running across vacant private property.

Kier, Cobb & Luedtke, Larry T. Reida, Healey & Healey, Lincoln, for appellants.

Cline, Williams, Wright, Johnson, Old-father & Thompson, Charles M. Pallesen, Jr., Fraizer & Fraizer, Lincoln, for appellees.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ., and NEWTON, District Judge.

WHITE, Chief Justice.

A gas fire in plaintiffs' house on May 13, 1964, was caused by an excavator striking a gas service line running across a vacant building lot immediately to the south of plaintiff's house. Plaintiffs sued the excavator, Schweitzer Excavating Company, and Schweitzer's employer, Victory Realty, Inc., and Victor E. Larson, its president. At the close of the plaintiffs' evidence the trial court directed a verdict for all of the defendants and this appeal followed.

The pertinent facts of this case are almost undisputed. Plaintiffs were the owners of a house at 6341 Colby Street, facing north and situated on the north portion of a tract of land owned by plaintiffs, described as Lots 1, 2, and 3, Block 35, Bethany Heights, Lincoln, Lancaster County, Nebraska. Sixty-fourth Street runs north and south immediately to the east of Lot 1. Plaintiffs sold the south 60 feet of Lots 1 and 2, and the east 40 feet of the south 60 feet of Lot 3 to defendant Victory Realty, the deeds being recorded on April 24, 1964. Plaintiffs knew a house was going to be built on the property. Easements on their property were granted and recorded as to sanitary and storm sewers power and electric lines, and for underground circuits of the Lincoln Telephone and Telegraph Company. But there were no reservations or filings relating to any easement for gas lines or simiar installations on th property, either in the office of the register of deeds or in the application filed at the city hall to subdivide the lots. The gas pipeline ran north from the gas main in the alley between Sixty-third and Sixty-fourth Streets to the southeast corner of plaintiffs' house, across the property deeded to defendant Victory Realty. The pipeline was about 2 feet beneath the surface, and there was nothing on the surface to indicate its presence. None of the parties knew of its existence. There was a gas main in Sixty-fourth Street as well as in the alley. Plaintiffs knew their house was serviced by gas and had an outside gas lamp installed to the north and in front of the house. The records of the gas company showed the installation of the gas service line on June 3, 1949.

On May 5, 1964, the defendant Victory Realty contracted to build a house on the tract in question for Mr. and Mrs. Galen Miner, and deeded the property to them on May 8, 1964, 5 days before the fire. Defendant Victory Realty orally contracted with defendant Schweitzer Excavating Company to do the excavating work for the basement. On May 13, 1964, Schweitzer's employee, Louthan, operating a frontend loader type of earth moving equipment, struck the gas service line, lifting it up, pulling it loose and away from the house, causing the escape of gas which followed the remainder of the pipe into the basement, and resulting in a fire when ignited by a hot water heater that was sitting directly under the gas service. Extensive damage resulted.

It is undisputed that none of the defendants had any actual knowledge of the gas service line running across this vacant tract of ground, nor were there any easements or notice of record charging them with knowledge of its existence. It also appears that there was nothing on the surface of the ground that would put the defendants on notice of the existence of the gas line. The plaintiffs' primary contention is that the contractor Victory Realty and the defendant Schweitzer Excavating Company had the duty to check with the gas company to ascertain the existence and location of the gas service line.

It is fundamental that in order to constitute actionable negligence there must be a duty or obligation which the defendant is under to protect the plaintiff from injury; a failure to discharge that duty; and damage resulting therefrom. Ring v. Kruse, 158 Neb. 1, 62 N.W.2d 279; Langenfeld v. Union P. R. R. Co., 85 Neb. 527, 123 N.W. 1086; McDonald v. Omaha & C. B. St. Ry. Co., 12 Neb. 17, 257 N.W. 489; Peterson v. State Automobile Ins. Assn., 160 Neb. 420, 70 N.W.2d 489; 65 C.J.S. Negligence § 4(1), p. 475.

Was there a duty, under the circumstances, to check with the gas company and discover the existence and location of the gas pipeline? We think not. Plaintiffs cite no authorities that support their position. They cite McClelland v. Interstate Transit Lines, 142 Neb. 439, 6 N.W.2d 384, an automobile accident case, and quotations as to the general definitions of negligence and proximate cause from Restatement, Torts, and Corpus Juris Secundum. With the law therein cited we are in agreement but none of these authorities bear on the precise question presented under the facts herein. They cite Ohio Fuel Gas Co. v. Pace Excavating Co., (Ohio App., 1963), 187 N.W.2d 89, 91 O.L.Abst. 184. This was an indemnity action by a gas company against an excavator for damages it had paid resulting from a fire and explosion occurring in a home as the result of leaking gas. The petition alleged that the excavator had negligently struck and damaged a gas line and had covered it without repairing it or warning others of its dangerous condition. The case turned on questions of indemnity law and active and passive negligence, and no issues were raised or discussed as to whether or not the excavator had knowledge of or a duty to ascertain the existence of the gas line. The case has no bearing on the issues in this case.

The cases touching on this subject seem to establish a duty on the part of an excavator in a public street or road to ascertain the existence of pipelines and other conduits. Pioneer Natural Gas Co. v. K. & M. Paving Co. (Tex., 1963), 374 S.W.2d 214; Frontier Telephone Co. v. Hepp, 66 Misc. 265, 121 N.Y.S. 460; Willmar Gas Co., Inc., v. Duininck (1953), 239 Minn. 173, 58 N.W.2d 197; Illinois Bell Telephone Co. v. Charles Ind Co. (1954), 3 Ill. App.2d 258, 121 N.E.2d 600; Annotations 53 A.L.R.2d 1083; 5 A.L.R.2d Later Case Service, p. 287.

We find no cases that support the existence of such a duty under the circumstances of this case where there was no actual knowledge of the gas service line, nothing on the surface to indicate its presence, and no recording in the public records of its existence. A case closely in point is Perry v. Ready Mix Concrete Constr. Co., 66 Ga.App. 716, 19 S.E.2d 196. In that case the defendant was employed as an independent contractor and while grading on a private lot within the city he struck a gas line which caused an explosion. The petition alleged in substance no actual knowledge by the defendant of the pipeline but alleged that it should have ascertained the existence of the pipeline; that he should have known of the existence of the pipeline since he was engaged in the business of grading and leveling lots on urban property; and that he should have anticipated the presence of a gas pipeline on the lot. In sustaining a demurrer to the petition the court said: 'Of course, the right to recover of the defendant depends upon the existence of three facts: (a) A legal duty resting on the defendant towards the plaintiff; (b) the violation of that duty by the defendant; (c) injury and damage to the plaintiff proximately resulting from the breach of the defendant. The petition fails to show any duty owed by the defendant to the plaintiff. It did not own the lot and was under no general duty to know of the presence of a pipe line beneath the ground. The allegations of the petition charge at most only constructive or implied notice to the...