Lund v. Mountain Fuel Supply Company , 15 Utah 2d 10 ( 1963 )

WADEj Justice.

Sherman V. Lund, appellant herein, brought this .action to recover damages.to his home .as a result of a gas leak from the main service line of the Mountain Fuel Supply Company, respondent herein, which flowed into appellant’s yard, saturating it and injuring and killing. trees, shrubs, arid plants. This is a second appeal on. the same cause of action. In the first appeal this court reversed because of erroneous instructions.¹ In the instant appeal the court, upon respondent’s motion, dismissed the action at the conclusion of appellant’s, evidence and excused the jury because it was of the opinion that appellant’s evidence had failed ■ to1 establish the negligence of the respondent Mountain Fuel Supply Company.

The evidence was uncontradicted that there was a gas leak from the main service line of the Mountain Fuel Supply ‘Company at the junction of that main line, across the street from appellant’s property with the service line which supplied appellant with natural gas fuel. The natural gas which escaped from the Mountain Fuel Supply Company’s main line followed the service line and saturated the grounds of appellant’s home causing the damage to the plants complained of herein. The evidence also disclosed that this main line was laid in a public street at a depth of 39 inches, which was what respondent Mountain Fuel Supply Company considered a proper depth, and that in the case of a slight hillside or deviation in the contour of the land, the pipe line would follow the contour of the land in most instances. The maintenance, repairs and inspection of these lines were under the exclusive control of the company. No regular inspection of the lines was made after they were installed but at times, perhaps every few years, an inspection would be made to determine whether any gas was escaping; otherwise, no inspection was made unless there was a complaint.

Appellant contends the court erred in ’concluding that the evidence was insufficient to justify the submission to the jury of respondent’s negligence under the doctrine of res ipsa loquitur. We agree.

In Wightman v. Mountain Fuel Supply Company,² in which the plaintiff was unable to show any specific acts of negligence of the gas company in an explosion of natural gas which destroyed her home and killed her husband, this court pointed out that in order to invoke the doctrine of res ipsa loquitur three elements must be present: “(1) That the accident was of a kind which, in the ordinary course of events, would not have happened had due care been observed; (2) That it happened irrespective of any participation by the plaintiff; and (3) That the cause thereof was something under the management or control of the defendant, or for which it is responsible.”

In the instant case in the absence of other evidence to the contrary, it would be reasonable to find that if due care had been observed in the installation, maintenance and inspection of respondent’s main service pipeline, the damage caused by the seeping gas would not have occurred. The break in the gas line did not occur on appellant’s property nor was there any evidence that any act of his contributed toward the break or the resultant damage. On the contrary, there was evidence that the respondent installed, maintained and inspected the gas line and that it was the one who determined that 39 inches below the surface was a proper and safe depth in which to lay its main gas service line. Under such circumstance the fact that an unexplained break in respondent’s pipeline did occur is sufficient to invoke the doctrine of res ipsa loquitur on the question of negligence, for if the due care necessary for the carriage of a known dangerous substance such as natural gas had been used in the pipe’s installation, maintenance and inspection, there ordinarily would not have been a break and a continuance of the leakage saturating appellant’s yard with natural gas.³

We are aware that there are cases in other jurisdictions which have held the evidence in the instant case without evidence of other negligence would be insufficient to invoke the doctrine of res ipsa loquitur so as to permit the submission of the question of respondent’s negligence to a jury. However, we are not impressed with their reasoning as applied to the evidence in the instant case and are not inclined to follow such cases. Since the sole responsibility for the installation, maintenance and inspection of the gas pipe is respondent’s, and appellant having proved its breakage and consequent damage to his property through no act of his own, he has carried his burden of proof, and the duty to rebut the inference of lack of due care should be upon respondent. The court therefore erred in dismissing appellant’s action without submission to the jury on the question of negligence.

Reversed. Costs to appellant.

CALLISTER and CROCKETT, JJ., concur. McDONOUGH, J., concurs in the result.

1 . Lund v. Mountain Fuel Supply Company, 12 Utah 2d 268, 365 P.2d 633.

2 . Wightman v. Mountain Fuel Supply Company, 5 Utah 2d 373, 302 P.2d 471.

3 . North Central Gas Co. v. Bloem, (Wyo.), 376 P.2d 382 ; 9 Wigmore on Evidence, 3rd Ed., pp. 377-384; Prosser on Torts, 2d Ed. 199, and Prosser’s article on Res Ipsa Loquitur in California, 37 California Law Review, pp. 183-199.