While gas service was being furnished to the premises at 300 West Division street in the city of Fond du Lac, the defendant and its employees knew the condition of the premises. It learned that the dwelling thereon did not rest upon ordinary foundations but was supported by wooden posts; that there was no basement under the building; that it was located within a flooded area of the city, and that the service pipes were directly below the floor joists, and it should have realized that frost might heave the pipes or flooding might cause the house to settle in such a manner as to break the pipes and permit a gas leak.
All of the authorities recognize that gas is a dangerous substance, and if it is permitted to leak in or about a dwelling it will inevitably lead to asphyxiation or damage by an explosion. It is my opinion that the defendant, having elected to store its gas in the service pipes under this dwelling rather than to shut it off at the curb line or to disconnect it at the main, assumed the duty of inspecting the same at sufficient intervals to see that damages were not done to other people. The authorities amply support this view.
"A higher degree of care and vigilance is required in dealing with a dangerous agency than in the ordinary affairs of life and business, which involve little or no risk of injury to persons or property. Therefore, in view of the highly dangerous character of gas and its tendency to escape, a gas company must use a degree of care to prevent damage commensurate to the danger which it is its duty to avoid, even though this degree of care may extend the requirement in that behalf slightly beyond the general rule with respect to the exercise of ordinary care to avoid such dangers only as are reasonably to be anticipated in the conduct of a particular business." 38 C.J.S., Gas, p. 732, sec. 42. *Page 181
"It has been held that failure of a gas company, on discontinuance of the use of its gas by a patron, to cut it off at the street valve, so as to exclude it from the service pipe, and cutting it off at the meter valve, so as to leave it stored in the service pipe up to the meter valve, do not constitute negligence per se. Since the gas, in such case, belongs to the gas company, however, the law imposes on it the duty to exercise care in the storing thereof, to the end that injury may not result, and it is bound to inspect, maintain, and repair the service pipe as long as it is so used." 38 C.J.S., Gas, p. 738, sec. 42.
A case very similar to the one in question is Castner v.Tacoma Gas Fuel Co. (1923), 123 Wn. 236,212 P. 283, 126 Wn. 657, 219 P. 12. In that case a dwelling house was demolished by an explosion on January 27, 1921. Gas was installed in the house in 1911. Gas service was discontinued there in May, 1913, at which time the meter was removed. Gas was not ordered or used by the occupants of the house thereafter. In that case the service pipe extended under ground from the main in the street and was brought to the surface of the ground under the house. The meter bar to which the meter was attached was installed under this corner of the property. When the meter was removed the gas was shut off ahead of the meter standard and not at the curb. In that case the court quoted with approval the rule laid down in Koelsch v. Philadelphia Co. (1893), 152 Pa. 355,362, 25 A. 522, where it said:
"While no absolute standard of duty in dealing with such agencies can be prescribed, it is safe to say in general terms that every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken. This would require in the case of a gas company not only that its pipes and fittings should be of such material and workmanship, and laid in the ground with such skill and care, as to provide against the escape of gas therefrom when new. but that such system of inspection should be maintained as would insure reasonable promptness in the detection of . . . leaks *Page 182 that might occur from the deterioration of the material of the pipes, or from any other cause within the circumspection of men of ordinary skill in the business."
In that case it was further stated (Castner v. Tacoma GasFuel Co., supra, p. 241):
"`A gas company is bound to inspect for discovery of leaks due to defects in materials, deterioration of pipes and valves, displacement or dislocation by accident, the weather, and the like, because it knows these things often occur.'"
In the Castner Case, the gas company had made no inspection of the pipe after the removal of the meter in 1913. There was a dispute in the evidence as to the ownership and control of the service pipe, but the court held that to be immaterial as the gas company was using the pipe at the time of the accident as a storage place for its product.
In the case of Nephew v. Consumers Power Co. (1937),283 Mich. 12, 17, 276 N.W. 881, it was stated:
"In view of the dangerous character of gas such as that sold by defendant, and its tendency to escape, it was the duty of defendant to use a degree of care to prevent injury and damage commensurate with the danger which it was its duty to avoid. Fleegar v. Consumers Power Co. 262 Mich. 537,247 N.W. 741; 28 C. J. p. 591. If it failed to exercise this degree of care, and injury and damage resulted by reason of such failure, it is liable. 12 R. C. L. p. 905.
"Defendant may not escape liability because the piping and shutoff valve on the premises were paid for by the owner the property where decedent lived and died. This does not excuse defendant from its failure to exercise the degree of care to avoid injury and damage above stated. Defendant cannot avoid liability because it did not own the pipes and shutoff valve on the premises where they were installed.Washington Gaslight Co. v. District of Columbia, 161 U.S. 316,16 Sup. Ct. 564, 40 L. Ed. 712."
The duty of a gas company under the circumstances here has not been determined in Wisconsin. Because of the *Page 183 growing population and the increase in the use of gas it would be well to adopt the rule cited by the above authorities, and require the gas company, when service is discontinued, to shut the gas off at the main or at the curb, or to assume the duty of inspecting the service pipes at sufficient intervals to assure that no damage will result from a gas leak. The company should not be required to cut off the gas at the main or curb in the case of a temporary discontinuance of service, but when it becomes apparent, as it did in this case, that gas would not be used upon the premises for a period of several years, it should meet its responsibility to the public. The added responsibility on the part of the gas company is slight, and it can reasonably be required to take steps that will save lives and property.
I am authorized to state that Mr. Justice HUGHES and Mr. Justice MARTIN concur in this dissent.