#### Guillaume, Respondent, vs. Wisconsin-Minnesota Light & Power Company, Appellant.

*November 19*

December *7, 1915.*

*Negligence: Injury to giants by gas: Evidence: Sufficiency: Instructions to jury: Special verdict: Form: Discretion.*

1. The evidence in this case, though largely circumstantial, is *held*to support a verdict to the effect that defendant, while repairing a service pipe, negligently permitted gas to escape into plaintiff’s greenhouse, thereby causing injury to her plants.

2. It is not error to refuse to give a requested instruction which is not directed to any question in the special verdict, especially where such instruction may he misleading.

3. The form of a special verdict, so long as it covers the issues, rests largely in the discretion of the trial court.

Appeal from a judgment of the circuit court for La Crosse county: E. C. ITigbee, Circuit Judge.

*Affirmed.*

This action was brought to recover damages for injuries to plants belonging to the plaintiff, situate in a greenhouse in connection with plaintiff’s dwelling on Sixth street in the city of La Crosse. It is the claim of the plaintiff that defendant’s employees were guilty of negligence in repairing defendant’s gas mains which extended into the plaintiff’s premises, in consequence of which gas escaped into the greenhouse and poisoned the plants.

The jury returned the following verdict:

“(1) Did the servants of the defendant company fail to exercise ordinary care in the removal of stoppage in the gas pipes of the plaintiff at the time and-place in question? *A.*Yes.

“(2) If you answer question number one 'Yes,’ then was such failure to exercise ordinary care the proximate cause of the injury to plaintiff’s plants ? *A.*Yes.

"(3) Did the plaintiff or her servants or agents fail to exercise any ordinary care which contributed to the injury to her plants? *A.*No.

*637“(4) If tbe court sbg.ll finally determine that tbe plaintiff is entitled to recover, at wbat sum do you assess ber damages? *A.*$500.”

Motions for directed verdict, to change tbe answers in tbe verdict, and for new trial were denied, and judgment was rendered upon tbe verdict in favor of tbe plaintiff, from wbicb this appeal was taken.

For tbe appellant there was a brief by *Lees &*Bunge, and •oral argument by *George W. Bunge.*

*J. B.*Higbee, for tbe respondent.

Kerwin, J.

Tbe greenhouse in question faced westerly •on Sixth street and immediately in tbe rear of it was plaintiff’s dwelling. There was a door in tbe greenhouse leading from Sixth street and also a door from tbe greenhouse to tbe dwelling bouse. Tbe floor of tbe greenhouse was on a level with tbe street, but there was a basement or cellar under tbe whole length of tbe dwelling divided by brick partition walls. Tbe west basement was next to tbe greenhouse and contained a coal furnace wbicb heated tbe greenhouse. There was an opening about three feet square in each partition wall dividing tbe basement. There was a stairway leading from tbe .greenhouse down through an open doorway into tbe basement under tbe west end of tbe dwelling. East of this basement, but separated by walls, were two small cellars, each of wbicb was entered from tbe kitchen at tbe east end of tbe dwelling. There were openings in these several cellar-wall partitions.

Tbe defendant supplied gas for a gas stove in tbe kitchen •of plaintiff’s dwelling by a service main extending front tbe trunk in Sixth street under tbe greenhouse into tbe west basement of tbe dwelling. Tbe gas meter was on tbe west wall near tbe stairway leading into tbe greenhouse.

On March 1, 1914, plaintiff notified defendant that tbe gas stove was not working, and defendant’s manager sent men to remedy tbe service. Tbe men arrived about 10 o’clock, and *638the evidence tends to show that they remained about three quarters of an hour, the plaintiff being at church during this time; that there was no gas odor in the greenhouse at the time they arrived, and that after they left and when plaintiff returned from church there was a very strong smell of gas in the greenhouse so that she was obliged to open the doors and ventilators. Some smell continued two days after the repairs had been made; in consequence of which escape of gas-the plants were injured.

The testimony further tends to show that the employees of the defendant at the time in question worked in the kitchen, in the small cellar beneath the kitchen, and in the west basement, which opened directly into the greenhouse; that in making the repairs defendant’s employees took out. a length of pipe between the kitchen stove and elbow in the east cellar-under the kitchen floor, found a small piece of ice in the pipe, which they removed, replaced the length of pipe, and turned, on the gas; that plaintiff’s daughter also found a quantity of “black, sticky stuff” under one of the benches in the greenhouse, which smelled of illuminating gas; that after it was removed the smell ceased. There is evidence strongly tending to show and from which it may fairly be inferred that through the negligence of defendant’s employees gas was suffered to escape and accumulate in the greenhouse and produced the injury to the plants complained of. ¡-

By consent of both parties the jury viewed the premises.

1. The first error assigned is that there is no sufficient evidence to support the verdict, therefore a verdict should have been directed. It is contended by appellant that the basis of the plaintiff’s claim to recover is (1) on account of gas which the defendant allowed to escape in the basement; and (2) fumes escaping from refuse taken from the gas pipes and deposited in the greenhouse, referred to in the evidence as-“black, sticky stuff;” and it is claimed by appellant that the-testimony on the part of the defendant is to the effect that defendant’s employees did the work properly and allowed no. *639..gas to escape, and that the testimony on the part of the plaintiff is circumstantial. There is evidence, however, on the part of the plaintiff which fairly and directly leads to the conclusion that the gas was allowed to escape into the greenhouse and caused the injury by the acts of the employees of the defendant in making the repairs, and while much of this evidence is circumstantial it was sufficient to support the verdict. A fact in a civil case may be established by circumstantial evidence when the circumstances are such as to lead fairly and reasonably to the conclusion sought to be established. *Sanborn v.*Walters, 145 Wis. 84, 129 N. W. 644; *Meyer v. Hope,*101 Wis. 123, 129, 77 N. W. 720; *Gates v. Hughes,*44 Wis. 332, 336. Where there is credible evidence from which a reasonable inference can be drawn in support of the claim of either party the question is for the jury. *Kersten v.*Weichman, 135 Wis. 1, 114 N. W. 499; *Beyer v. St. Paul F. & M. Ins. Co.*112 Wis. 138, 88 N. W. 57; *Hewitt v. Southern Wis. R. Co.*159 Wis. 309, 150 N. W. 502.

We are convinced that there is ample evidence to support the verdict. A discussion of it would serve no useful purpose.

2. Error is assigned because the court refused to charge as requested: “You are instructed there is no evidence to warrant you in finding that the plaintiff’s plants were injured by any substance placed by the defendant or defendant’s servants in plaintiff’s greenhouse.” There was no error in refusing to give this instruction. In the first place it was not directed to any question of the special verdict, and moreover the instruction was misleading. The jury might well have understood that the “substance” referred to in the request meant gas escaping from the gas main, and that there was no evidence sufficient to support a finding that the plants were injured by gas.

3. Error is assigned because the court refused to submit to the jury as part of the special verdict the following: “Were plaintiff’s plants injured by gas manufactured by the defend*640ant ?” Tbe questions submitted to tbe jury fully covered tbe issuable facts put in issue by tbe pleadings. Tbe form of verdict, so long as it covers tbe issues, rests largely in tbe discretion of tbe court. *Ward v. C., M. & St. P. R. Co.*102 Wis. 215, 221, 78 N. W. 442; *Zimmer v. Fox River Valley E. R. Co.*118 Wis. 614, 618, 95 N. W. 957.

Tbe court submitted, first, whether tbe defendant failed to exercise ordinary care in tbe removal of stoppage in tbe gas pipes at tbe time and place in question; second, if tbe first question was answered in tbe affirmative, then was sucb failure to exercise ordinary care tbe proximate cause of tbe injury to plaintiff’s plants. These questions disposed of tbe issues of defendant’s negligence and proximate cause. There was no error in refusing to submit tbe question. *Berndt v.*Cudahy, 141 Wis. *457,*124 N. W. 511; *Anderson v. Sparks,*142 Wis. 398, 125 N. W. 925.

We find no error in tbe record.

*By the Court.*— Tbe judgment is affirmed.