Shaw v. Wisconsin Power & Light Co.

Wisconsin Supreme Court

Shaw v. Wisconsin Power & Light Co.

40 N.W.2d 498, 256 Wis. 176, 13 A.L.R. 2d 1390, 1949 Wisc. LEXIS 432

CourtWisconsin Supreme Court

DecidedNovember 30, 1949

StatusPublished

Cited by4 cases

This text of 40 N.W.2d 498 (Shaw v. Wisconsin Power & Light Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shaw v. Wisconsin Power & Light Co., 40 N.W.2d 498, 256 Wis. 176, 13 A.L.R. 2d 1390, 1949 Wisc. LEXIS 432 (Wis. 1949).

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Opinions

Fairchild, J.

The only question, which it is necessary to consider, is whether the defendant was negligent in not turning the gas off at the street and in allowing it to stand in the pipes on deceaseds’ premises.

The rule which applies to situations such as this has been discussed in opinions of courts and in texts. It has been held that failure of a gas company on discontinuance of the use of its gas by a householder or patron to cut off the gas at the street so as to keep it from the service pipe does not constitute negligence per se. There may be circumstances imposing a duty to inspect because a gas company is expected to take every reasonable precaution suggested by experience and usual practice. It must install pipes and fittings of good material and workmanship with skill and care and must inspect its pipes and promptly repair them when they become unsound. See 24 Am. Jur., Gas Companies, p. 680, secs. 20 to SO, which treats with duties and liabilities of gas companies. Also 38 C. J. S., Gas, p. 738, sec. 42, which deals with negligence in turning gas on or off, and Canfield v. Gas *179 Co. (1917), 80 W. Va. 731, 93 S. E. 815; Anno. L. R. A. 1918A, 808.

The trial court found, and his finding is supported by the evidence, that the pipe in which the break occurred was not defective and that the break was caused by the settling of the house due to a rotten post. Therefore, inspection, maintenance, or repair of the pipes by the defendant would not have prevented the accident.

While defendant can be held to a duty to keep the pipe in which its gas is stored in good condition, it cannot be required to make an inspection of the premises to determine whether they are being kept in safe condition without any knowledge that they may be a source of danger. There was no odor of gas prior to the death of the occupants of the house; there was no sign that the house was sagging and exerting pressure on the gas pipes under it. In fact, as pointed out by the trial court, there was no proof that an inspection even a day or two before the break would have disclosed the likelihood of pressure on the pipes from a sagging of the house. Because of such circumstances defendant was under no duty to inspect the premises to discover a possible dangerous condition. The rule has been stated as follows:

“It is of the essence of negligence that the person charged should have knowledge that there was a duty for him to perform; knowledge of the facts out of which the duty to act arises is essential; in order that an act or omission may be regarded as negligent, the person charged must have knowledge or ought to have known from the circumstances that the act or omission charged involved danger to another.” Moen v. Madison Railways Co. (1929), 199 Wis. 168, 170, 225 N. W. 821.

Any other rule would necessitate the examination at frequent intervals of all buildings in which gas is used. It would be a practical impossibility.

*180 The plaintiffs cannot recover the damages they seek because there is no evidence that the defendant failed to perform any duty imposed on it by law.

By the Court.- — -Judgments affirmed.

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Fairchild, J.

The only question, which it is necessary to consider, is whether the defendant was negligent in not turning the gas off at the street and in allowing it to stand in the pipes on deceaseds’ premises.

The rule which applies to situations such as this has been discussed in opinions of courts and in texts. It has been held that failure of a gas company on discontinuance of the use of its gas by a householder or patron to cut off the gas at the street so as to keep it from the service pipe does not constitute negligence per se. There may be circumstances imposing a duty to inspect because a gas company is expected to take every reasonable precaution suggested by experience and usual practice. It must install pipes and fittings of good material and workmanship with skill and care and must inspect its pipes and promptly repair them when they become unsound. See 24 Am. Jur., Gas Companies, p. 680, secs. 20 to SO, which treats with duties and liabilities of gas companies. Also 38 C. J. S., Gas, p. 738, sec. 42, which deals with negligence in turning gas on or off, and Canfield v. Gas *179 Co. (1917), 80 W. Va. 731, 93 S. E. 815; Anno. L. R. A. 1918A, 808.

The trial court found, and his finding is supported by the evidence, that the pipe in which the break occurred was not defective and that the break was caused by the settling of the house due to a rotten post. Therefore, inspection, maintenance, or repair of the pipes by the defendant would not have prevented the accident.

While defendant can be held to a duty to keep the pipe in which its gas is stored in good condition, it cannot be required to make an inspection of the premises to determine whether they are being kept in safe condition without any knowledge that they may be a source of danger. There was no odor of gas prior to the death of the occupants of the house; there was no sign that the house was sagging and exerting pressure on the gas pipes under it. In fact, as pointed out by the trial court, there was no proof that an inspection even a day or two before the break would have disclosed the likelihood of pressure on the pipes from a sagging of the house. Because of such circumstances defendant was under no duty to inspect the premises to discover a possible dangerous condition. The rule has been stated as follows:

“It is of the essence of negligence that the person charged should have knowledge that there was a duty for him to perform; knowledge of the facts out of which the duty to act arises is essential; in order that an act or omission may be regarded as negligent, the person charged must have knowledge or ought to have known from the circumstances that the act or omission charged involved danger to another.” Moen v. Madison Railways Co. (1929), 199 Wis. 168, 170, 225 N. W. 821.

Any other rule would necessitate the examination at frequent intervals of all buildings in which gas is used. It would be a practical impossibility.

*180 The plaintiffs cannot recover the damages they seek because there is no evidence that the defendant failed to perform any duty imposed on it by law.

By the Court.- — -Judgments affirmed.

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40 N.W.2d 498, 256 Wis. 176, 13 A.L.R. 2d 1390, 1949 Wisc. LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-wisconsin-power-light-co-wis-1949.

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