Lewis v. Bjornestad

VAN DYKE, J.

Louis S. Lewis and his wife Ella brought this action against Ras Bjornestad to recover damages for loss suffered by them when a fire damaged the Lakeside Dairy in Vallejo, which they owned and operated. They charged that the fire was caused by the negligence of Bjornestad. Judgment was rendered in their favor and Bjornestad appeals.

A few months prior to November 6, 1943, respondents undertook the construction of certain improvements in their dairy, which improvements included the replacement of a gas boiler, gas line and gas meter. Appellant Bjornestad contracted to install a new gas boiler. A plumber contracted to install the gas line leading from the gas pipe of the Pacific Gas and Electric Company, hereinafter called the “utility,” to the boiler; and the installation, at the request of the respondents, included the insertion into the line and the capping or plugging of a “T” outlet designed at some later time to be connected with and to supply gas to a floor heater for the use of the apartment above the main dairy building. The base of the floor heater, with its pilot light, extended through the ceiling of the dairy proper. This brought the

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pilot light approximately 10 feet distant from the T in the gas line, which line ran along under the ceiling of the dairy proper. When the boiler had been installed save for final testing and the gas was in, the utility installed its meter, but did not turn on the gas. On November 6th appellant appeared at the premises for the purpose of placing his boiler in operation and making his final adjustments. Since the gas had not been turned on at the meter appellant either himself called the utility or had the call placed by an employee of the respondents, with the request that the gas be turned on, this being the conceded duty of the utility. Appellant was told that the utility had at the moment no man available and did not know when one could be sent out. After waiting for some time and no one having appeared from the utility, appellant undertook to turn on the gas himself. It appears that there is a standard practice followed by the utility in doing this. The valve is opened and the test hand of the meter is watched. If the line is tight the test hand will move temporarily and for a very short period until the pressure in the line being serviced equals that in the main and thereupon the test hand becomes stationary. Thereafter a watch is kept for several minutes and if the test hand continues stationary it is considered that the tightness of the line has been demonstrated. There was testimony on the part of appellant, which he argues was uncontradicted, that, being thoroughly familiar with what had to be done in turning gas into a new line and having, with the authority of the utility, done it many times, he carefully and completely followed the prescribed routine, noted the preliminary fluctuation of the test hand when he opened the valve, and that it became stationary, indicating a tight line; and that thereupon, leaving a helper to watch the test hand further, he went to his boiler, bled the line of air until raw gas came out at the burners, then lighted the burners and began adjusting them to get maximum efficiency. It appeared that before the gas was turned on, and in compliance with law, the Vallejo inspector tested the line after it was installed and found and certified that it was tight. He removed the cap or plug from the T and affixed his pressure gauge thereto and thus used that orifice as a convenient means of testing the line. In compliance with law he thereupon hung his certificate on the meter or at the meter location which certified that the line had been tested and found tight. The certificate was there when appellant later turned on the gas. Appellant was busy