*1 petition postconviction court which heard defendant’s at hearing. judgment is affirmed.
Affirmed. INSURANCE COMPANY v. IRON TRAVELERS RANGES S. COMPANY AND NATURAL GAS OTHER (2d) 183N. W. 784. February 5, 1971 42155. No. & Donohue Donohue Donohue, appellant. and Howard I. Geer, Meagher, Anderson, Frisbee, & Markham M. R. O. C. II, respondents. Adamson Nelson,
Heard Knutson, J., Murphy, Otis, before C. *2 Frank Gallagher, T. JJ. Reconsidered and decided en banc. t. Gallagher,
Frank Justice. Plaintiff, Company, appeals Travelers Insurance an from order of denying the district court motion for a new trial its following jury verdict for defendants. recovery damages resulting action is property from gas explosion 10, 1965, which occurred on March in Telephone basement Company Crosby, of the Pioneer at Min- Plaintiff, building,
nesota. paid insurer of the Pioneer Tele- phone Company $52,271.72 damages as the amount its and subrogated rights telephone company. became to the of the It appears undisputed exploded the natural which came pipeline by Ranges from a break in a owned defendant Iron Nat- Company; pipeline ural this by Gas had been installed in 1960 Underground Constructors, Inc., defendant Northern Dodge Center, Minnesota; and the entered a windowless basement telephone company through room the openings, several conduit telephone unplugged which had left unsealed or dur- ing apparent in 1960 in construction violation of a Commission, of the Public Service successor to Railroad and Commission. Warehouse agree plaintiff might
We with the trial court that have had recovery present some had case been tried under the com- parative negligence However, under as it existed statute. the law prejudicial and in at of trial the absence of time we error* must affirm. trial, copy
At defendant offered for admission a of an order (predecessor Commission the Railroad Warehouse Commission), part: provided Service which in Public “It is therefore ordered: Grounding published Part and the there-
“1. That Rules Safety the 5th Edition of the National Electrical with of Code September 23, in handbook H 32 issued embodied Department National Bureau of Standards of United States construction, Commerce, applies so to the main- far as it light, tenance, telephone, telegraph, operation electric crossing, paralleling power, or more or less or other electric lines railway, public any railroad, or other the lines of interurban utility, hereby be, prescribed and the are for the State same Minnesota, together the General Rules for. Coordination with hereby A and Cooperation attached marked Exhibit hereto part made a hereof.” secretary Pub- a certificate from
Attached thereto was indicating copy offered lic Service Commission original Defendant also in his office. on file identical with the offered, safety re- admission rules 291G of provides: Regulation 291G ferred to. *3 Manholes.
“291.
# % [*] ‡ v Sealing Laterals. “G. through buildings, to for service connections
“Lateral ducts which, systems, buildings other duct may or enter water or of asphal- the use effectively plugged cemented or should be means.” tum, pitch, suitable or other admissibility ex- of both vigorously the contested Plaintiff argument the from attor- listening in-chambers After to hibits. admissibility, sides, in favor of court ruled neys the both stating:
“* * * certifi- basis of this going on the to hold The Court that secretary Commission] the Public Service [by of cate properly, if it can be and passed presumed have been to it is objecting party]. I up way, be to any that will [the attacked generally these documents time, but had more wish the Court
263 departments by particular from State custodian their rec- of to be valid on ords are assumed their face.” Regulation appeal on that Plaintiff contends does not 291G and effect law it have the force of because was not filed with secretary of state and further that it was not admissible at trial secretary to have been filed because it was shown with the of state. provisions 15.049,
Pursuant to of Minn. St. this court takes judicial notice of the records on in the secretary file office of the contain a 9797-Z12, These records file numbered state. en- Regulations, titled: Railroad “Rules Warehouse stamped: on the front which is Commission,” of Minnesota “State
“Department of State
Filed - 3 p. m.
June Holm Mike
/s/ Secretary of State” among papers Included in that file is the order of Rail- quoted requires and Warehouse Commission above. This road unprejudicial rejection plaintiff’s first contention and renders in the admission possible error 291G without showing it the secretary had been filed with a state.1 that the company next contends
Plaintiff pipeline are construction not members of the class sought protected by regulation. argues be It viola- plaintiff opposed When admission on the grounds invalidity comply for failure to procedures with adoption, presenting prima showing validity the burden of facie regulation’s (defendants proponent here). normally fell to the This is showing accomplished by that the has been filed with the secretary published by or state has been the State Publication Board. *4 showing presumption Either duly would raise a rebuttable that it was 15.048, adopted, opponent to admissibility Minn. St. and shift the of the showing adoption burden procedure of in what manner the defi was cient.
264 by regulation here, plaintiff tion the a relied on of such as is even law, though the it had effect and force of does not make the guilty contributory negligence plaintiff as a matter of law regulation adopted it is shown the for the unless that was bene- person asserting the the violation. claims that this fit of Plaintiff Underground particularly true of defendant Northern Con- Inc., structors, property the area has office or in which no where village Crosby. explosion It further the in the occurred or regulation having it not been shown that was claims protection defendants, adopted it not have for the should in been admitted evidence. they hand claim that are members
Defendants on the other regulation protection having a class entitled to the a telephone company requires to seal conduits law which a force of argue safety adjacent gaslines. not They statutes to factory by acts —are specifically limited their terms —such public every generally member of enacted for the benefit by violation, citing exposed injury Dart v. to or loss who is 526, 555, (2d) which was an 223 Minn. 27 N. Pure Oil W. Co. explosive purchaser of mixture of an death of action wherein we gasoline in violation of statute and kerosene sold be to protection the statute limited should held that persons position that the class of defendant’s users. It is protection enacted extends to all of whose injury normally expected may to sustain persons be who those this class includes defendants. and that a violation or loss here defendants opinion the record could that under It is our protection entitled to within the class be be found to general rule, a statute is in- As a safety involved. expected may normally protect be suffer those who tended to 666, Note, Rev. injury Minn. L. violation. particular from its protected group the court 670, cited. To ascertain and cases light language the evils to be remedied looks to Lynghaug Payte, prevented. Minn. v. harm to be or the (2d) 660. N. 76 W. *5 purpose
The prevent obvious 291G is to seepage buildings through into lateral ducts. This clearly contemplated gas leakage possibility of a in- was prevent tended to or at least possibility explo- diminish of an leakage sion should there gas, negligent be such a or other- wise.
Plaintiff contends that the trial failing court was in error in jury to instruct the telephone that the was bound anticipate negligence of the defendants until it became negligence. aware of such findWe no reversible error connec- give tion with the trial court’s failure to such an instruction under the facts and circumstances in this Those case. cases which have reached that result in Minnesota contained no anticipate negligence command to appears in this record. opinion It is our existing under rules and laws at the time of the trial the verdict should be affirmed.
Affirmed.
Murphy, (dissenting). Justice damages involved in action resulted from the defec- tive installation system and maintenance of a distribution by defendants. The defective connection located more than building. negligence one-half a block from insured’s Insured’s predicated upon alleged violation of a of doubtful validity, adopted which in event was not or intended for the negligent I benefit of defendants. would reverse.
Otis, (dissenting). Justice Murphy.
I concur in the dissent Mr. Justice Kelly, (dissenting). Justice Murphy.
I concur in the dissent of Mr. Justice