Morrison v. Superior Water, Light & Power Co.

134 Wis. 167 | Wis. | 1908

Mabshall, J.

The controversies on this appeal are in a very narrow compass. These are the only complaints:

The court erred:

(1) In charging the jury that “the mere fact that a leak occurs in defendant’s pipes is not in itself evidence of neglect on its part;”

(2) In further instructing that “It is its duty, however, to respond with reasonable promptness, considering the exigencies and circumstances of the case, to reports of leakages, and make repair;”

(3) “The court should have instructed the jury as to the duty of the defendant in the care, management, and control of its gas.”

The first two complaints should be viewed together. They really form but one, as clearly appears upon the instructions being viewed as a whole.

It will not do, as this court has often said, to separate a clause in an instruction from its context and condemn it, because considered by itself it is incorrect. Otherwise it might well convey an erroneous idea although with its associate thought or thoughts it is faultless. Tuckwood v. Hanthorn, 67 Wis. 326, 30 N. W. 705.

Again it will not do to view an instruction, for the purpose of testing its correctness, independently of the situation actually dealt -with thereby. Regarded only in the abstract it might appear erroneous, while viewed in the concrete it might appear clearly otherwise. Billingsley v. Maas, 98 Wis. 176, 67 N. W. 49; Bartell v. State, 106 Wis. 342, 345, 82 N. W. 142.

Here, so far as appears by the evidence, the gas piping in the basement of the building and throughout the structure was originally free from defects. The claim of the appellant was that a defect developed some time before the fire at some point, that being, so far as there is any evidence on the question, at one of the meter connections, and that due diligence was not exercised by the respondent to repair the same. The learned trial judge for the purpose of directing the attention of the jury to the mere circumstance of the particular defect occurring, said: “The mere fact that a leak occurs in defendant’s pipes is not itself evidence of neglect on its part.” In direct connection therewith and as a part of the entire instruction, the attention of the jury was directed to the duty of the respondent, upon the existence of a defect being brought to its attention, the court saying: “It is its duty, however, to respond with reasonable promptness, considering the exigencies and circumstances of the case, to reports of leakages, and make repair.”

It is conceded that the last part of the instruction by itself' and so far as it goes is as favorable to appellant as could well have been desired, but counsel argue at length, citing many authorities, to the effect that the existence of a defect in a gas company’s pipe allowing a dangerous escape and accumulation of gas, is evidence, unexplained, of negligence. The authorities so hold. Smith v. Boston G. L. Co. 129 Mass. 318; Tiehr v. Con. G. Co. 51 App. Div. 446, 65 N. Y. Supp. 10; Carmody v. Boston G. L. Co. 162 Mass. 539, 39 N. E. 185; Koelsch v. Philadelphia Co. 152 Pa. St. 355, 25 Atl. 522, 18 L. R. A. 759.

So the language of the trial'court, considered in its general sense and apart from the case in hand, is subject to serious criticism. Applied to some conditions it would doubtless constitute harmful error. But not so- when applied to- the precise "situation with which the court was dealing; a slight leak at one of the meter connections, caused by a shrinkage of the gasket, a leak only sufficient as appears from the evidence to cause gas at the point of the defect to ignite upon the lighted end of a match being touched thereto and to- burn a short time, not sufficient to maintain combustion till extinguished. True, the mere occurring of such a trifling leak in the exposed gas pipes in a building, which is liable to occur, we must assume, at any time in the best of systems, is not of itself evidence of negligence, while the contrary is true as to a leak not ordinarily liable to occur. As to- such small ■ordinary leaks there is only the duty of reasonable inspection and ordinary diligence to make the necessary repairs as the learned court instructed the jury.

The third exception relied upon relates to a failure of the court to instruct upon a subject in respect to which no request was made. Error cannot be, predicated upon such a failure. Page v. Sumpter, 53 Wis. 652, 11 N. W. 60; Trowbridge v. Sickler, 54 Wis. 306, 11 N. W. 581; Hacker v. Heiney, 111 Wis. 313, 316, 87 N. W. 249; Van de Bogart v. Marinette & M. P. Co. 127 Wis. 104, 106 N. W. 805.

By the Oowrt. — The judgment is affirmed.