(dissenting).
A short section of the gas service line running across the school property from the gas company’s main line in the street to the meter in the basement of the school building became corroded and defective to such an extent that gas leaked into the basement of the building causing an explosion in which the school janitor was fatally injured.
The distance from the gas company’s pipeline in the street to the school building was approximately 150 feet. The defective portion of the service line was under a concrete pavement constructed by the school district after the installation of the gas line. Nothing in the evidence tends to show how the defective condition of this section of the pipe could have been discovered by the exercise of ordinary care either by the school district or by the gas company. In this case the discovery was made by cutting through the concrete pavement near the school building and digging up the pipe which was laid three feet below the surface!
The service line from which the gas escaped was the property of the school district and was located on property under its control. There was neither allegation nor proof that the gas company either by contract, custom, or franchise provision was under any duty to maintain or to inspect the service line on the school property or that it had any notice, or knowledge that would put it on notice, of ally defect in the service line. In the words of the district judge who tried the case, “there is not the slightest evidence or suggestion of knowledge or notice on the defendant’s part of any defect in the condition of the service pipe. In fact the plaintiff disclaims that as an issue.” An official of the gas company testified that never to his knowledge had the company *223made any inspection of the gas service line on the school property. This is the only reasonable interpretation to be placed upon the testimony of the witness, quoted in the majority opinion. The service drum which the witness said was casually inspected once or twice a year is not identified in the evidence, though certainly it is not the service line. But, if the interpretation placed upon this testimony in the majority opinion is permissible, it does not follow, because casual inspections of the service line were made when none was required, that by this voluntary action on its part the gas company became the insurer of the safety of the service line or that it assumed control or dominion over it.
Nor can I see anything in the testimony of the official of the gas company, quoted in the majority opinion, to the effect that if repairs were needed the gas company would make them to the exclusion of independent plumbers, on which to base a finding that the gas company had assumed complete control and authority over the service line on the school property. This statement, in final analysis, is nothing but the opinion of the witness as to the power of the gas company to insist upon the exclusive right to repair pipelines of its customers which it neither owns nor controls. There is nothing in the record to show that the gas company had such a privilege under its franchise. But, if we assume that the company in fact asserted it and that it had the right to enforce it, all that the testimony tends to show is that the gas company, on receipt of notice of a defect in the pipeline, would repair it at the expense of the owner. Only after notice would the privilege ripen into an obligation.
The effect given in the majority opinion to the testimony discussed above seems to me to impose upon a distributor of gas the liability of an insurer in respect to the condition of service lines owned by and under the control of its customers; or, at least, where defects because of covering pavements or other construction by the service line owner can not otherwise be discovered, to impose upon the utility, in the exercise of ordinary care, the burden of periodic excavation of all gas service lines owned and controlled by its customers.
The service line had been installed on the school property by the predecessor of the gas company on the order and at the expense of the school district. There is no claim that it was negligently constructed or that the pipe used in the installation was not of a character and quality usually employed for such service. On the other hand, the pipe used in the construction of the service line was of the kind customarily employed in the City of Lincoln, Nebraska, where the accident occurred. The only suggestion to the contrary comes from the testimony of a witness for the plaintiff who had been engaged in the plumbing business in Lincoln for about 40 years. This witness testified that the average life of pipe of the kind used in the service line was approximately 15 years in some soils, but he made it plain that the life of the pipe would depend upon the character of the soil in which it was laid. Asked about the soil surrounding, the pipe in the school yard, he said: “Well, I wouldn’t be no analyst of the ground, but I went to school there when I was only up about the third grade, I think; but outside of that, as far as the soil, I wouldn’t know.”
He admitted that pipe of the same kind had been in service in Lincoln for as long as 40 years. Moreover, the service line had been in service on the school property for more than 25 years, and only one small section of it had deteriorated. Since there was no charge of negligence in the installation of the pipe, the admissibility of this testimony was at least open to question, but, if admissible, it does not rise to the dignity of proof.
Plaintiff’s sole reliance for recovery against the defendant gas company was the claim that as a matter of law, because of the known dangerous character of gas and its tendency to escape, the company was under the duty of inspecting and maintaining service lines on the property of its customers and liable for any damage or injury resulting from escaping gas from defective service lines, although, as plaintiff admits, the gas company was without notice or knowledge of the defect in the line. The rule almost universally prevailing in other States is directly to the contrary. It is that, in the absence of notice of the defec*224tive condition of the customer’s service line or appliances, the gas company is under no obligation to repair them, and is not liable for accidents resulting from their defective condition. On receipt of notice or upon the assumption of the duty of maintenance, repair, and inspection, the gas company is required to act with diligence and dispatch to remedy the defective conditions or to prevent accidents which may result from them. It may discharge its duty by cutting off the gas at the cut-off valve in the street until such time as the customer has placed his service line in satisfactory condition, or it may remedy the defective condition at the expense and with the consent of the owner. In this case the proof is that it was the practice of the gas company to make repairs on receipt of notice that repairs were necessary. And no court has ever held that a company distributing gas to the public is an insurer of the safety of the facilities owned by it or under its control. The company must exercise ordinary care to maintain the equipment owned and controlled by it in safe operating condition. Ordinary care in the circumstances must be commensurate with the known tendency of gas to escape and the dangers likely to result from escaping gas.
When this case was tried in the district court, the Supreme Court of Nebraska had not passed upon the precise question -involved. This is admitted by the plaintiff. The trial judge, after reviewing Nebraska decisions relied on by plaintiff and cited in the majority opinion, concluded “that there is no Nebraska statute or judicial deliverance that settles, or even persuasively indicates, a direct local rule upon the question.” Careful examination of the Nebraska decisions as of the time of the trial of this case convinces me that the trial judge was correct in this statement. In these circumstances, the Nebraska decisions remaining unchanged, this court should accept the opinion of the trial judge on a doubtful question of Nebraska law under our decisions in Russell v. Turner, 8 Cir., 148 F.2d 562, 564, and Abbott v. Arkansas Utilities Company, 8 Cir., 165 F.2d 339, 340. For certainly it cannot be said that in this case the trial judge was not deciding a question Of Nebraska law simply because the Nebraska court had not ruled upon the applicable Nebraska law at the time of this trial. But, since this case was tried in the district court and submitted to this court, the Supreme Court of Nebraska has decided the case of Clough v. North Central Gas Company, 150 Neb. 418, 34 N.W.2d 862, 865. This case, in my opinion, clearly sustains the conclusion reached by the trial judge.
The Clough case was an action to recover damages sustained in a gas explosion caused by a leak in a customer’s service line. Two questions were decided by the Nebraska court. One concerned the validity of an ordinance imposing upon the gas company the duty to install and maintain, at its own expense, all service lines on the property of its customers from the gas company’s main line in the street to the meter in the customer’s building; the other, the duty of a gas company, on receipt of knowledge that a service line owned by its customer was corroded to such an extent as to permit gas to escape. The answer to the second question is stated in the syllabus prepared by the court:
“A legal duty of a gas company as to third persons in reference to the escape of gas from service lines owned and controlled by others on private property, and leading from the company’s pipes in the street to its meter in the consumer’s building, which pipes have been properly installed and tested, determined to be safe for use, and actually safely used for some time, does not extend to thereafter making inspection of said service pipes, unless the company has knowledge of a probable defective condition in such pipes, or has knowledge of circumstances rendering it probable that gas is escaping therefrom, or unless the company is bound by contract, franchise, or custom to make such inspection.
“Where a public utility company engaged in the business of furnishing gas to its customers knows or should know that a service line owned by a customer is corroded to such an extent as to permit gas to escape, it is its duty either to cause the service line to be repaired by the customer, or to have the gas shut off at the street where the main is that furnishes the gas to the customer, in order to avoid the danger which might result.”
*225The concluding paragraphs of the opinion are:
“Thus, where it appears that a gas company has knowledge that g'as is escaping in a building occupied by one of its consumers it becomes the duty of the gas company to shut off the gas supply until the necessary repairs have been made, although the defective pipe apparatus does not belong to the company and is not in its charge or custody. See Clare v. Bond County Gas Co., 356 Ill. 241, 190 N.E. 278.
“We believe the record discloses evidence sufficient from which the jury could find that the gas company had notice of the dangerous condition existent, and if it did have such notice, it becomes a question for the jury whether or not it made proper inspection and repairs with reference thereto.”
Numerous cases from other jurisdictions sustaining the rule announced in the Clough case were cited by the Nebraska court.
It may be noted that in the Clough case the gas company, on receipt of complaint from the customer that gas was leaking, made an inspection which failed to locate the source of the trouble; and further that, in citing the case of Julian v. Sinclair Oil & Gas Co., 168 Okl. 192, 32 P.2d 31, the Nebraska court was answering the gas company’s argument that the mere fact that it did not own the service pipe on the customer’s property absolved it from liability. In the Julian case the gas company did not own the service line, but it had complete control of and dominion over it. All that the Oklahoma court said in the opinion is that if the gas company had control of the service line it could not escape liability on the plea that it did not own it.
It is not important, if true, that the ruling of the Nebraska court in the Clough case concerning the duty of the gas company in respect to a pipeline owned and controlled by its customer was not necessary to decision of the case. It is sufficient that the Nebraska court has decided the question exactly as it was decided by the district court in this case.
The question in this case is controlled by the substantive law of Nebraska. Cases from other jurisdictions are of no importance since the decision of the Clough case. Nevertheless, the cases cited in the majority opinion from other jurisdictions are distinguishable from the present case on the facts. The distinction between this and the Julian case, supra, has been pointed out. The defective appliance involved in Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712, like that involved in the Nebraska Harms case, was situated in a public thoroughfare for the use and convenience of the utility and was under its control and dominion. The customer of the utility whose service line connected with it had nothing to do with its operation and maintenance. The court held that the mere fact that the franchise of the utility permitted it to require the customer to pay for the original construction of the appliance did not relieve the utility from liability resulting from a. failure to use ordinary care in its maintenance for the safety of persons using the thoroughfare. In Manning v. St. Paul Gaslight Co., 129 Minn. 55, 151 N.W. 423, L.R.A.1915E, 1022, Ann. Cas.l916E, 276, the defective service line was on the property of the customer of the utility and installed at his expense. But the complaint alleged and the proof showed that the service line had been carelessly and defectively installed by the gas company, and that its negligence in this respect permitted the escape of gas. On these facts the Minnesota court held that the mere fact that the customer had paid for the installation and owned the pipe was not sufficient to relieve the gas company from liability for its negligence in installing the service line in a dangerous and insufficient manner.
The judgment of the district court should be affirmed.