# Petition for a Writ of Certiorari — Wideman v. Mississippi Valley Gas Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0904%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 422 U.S. 1008 ## Text end ot phat phar phat shat Aha thas tha aha phe Ahh IN THE SUPREME COURT OF THE UNITED STATES October Term 1974 wR @ er DUDLEY WIDEMAN, Administrator of the Estate of Claude Wideman, Deceased, Petitioner, Vv. MISSISSIPPI VALLFY GAS COMPANY, Respondent. PFTITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPFALS FOR THE FIFTH CIRCUIT William S. Lawson Main Street P.O. Box 848 Tupelo, Mississippi 38801 Joe H. Daniel Daniel ,Coker ,Horton,Bell and Dukes 405 Tombigbee Street P.O. Box 1084 Jackson, Mississippi 39205 COUNSEL FOR PFTITIONER April 25, 1975 INDEX Page Opinion below . ...-++-+-«« « 2 Jurisdiction ... +++ +e © « e 2 Questions presented ...++«. « 3 Constitutional provisions ANGORLVOG: > 4:36.95 2v-6 8 0 wo 0 4 Statement of the case ..... .- 4 Reasons for granting the writ. . 8 1. The decision below deprived the petitioner of the right to trial by jury guaranteed by the 7th Amendment to the Constitution of the United States, and is contrary to decisions of this Court. 8 2. The decision below deprived the petitioner of due pro- cess of law guaranteed by the 5th Amendment to the Constitution of the United States ..-«.se-«es'ec ec « 8 Cene leet ao Aa 6 8 ee ee 18 Appendix "A" (Opinion and Judg- ment of Court of Appeals) . App. 1 Appendix "B" (5th Amendment) . . App. 19 CITATIONS , Cases: Boeing Company v. Shipman, 411 F.2d Ses (Sth cir. 1969) Giordenello v. United States, 3 U.S. 480, S.Ct. 1245, 2 L.Ed.2d 1503 (1958) Green v. American Tobacco Com- any, 375 F.2d 673 (5th Cir. 1963, cert. denied 377 U.S. 943, 84 S.Ct. 1349, 1351, 12 L.Ed.2d 306 (1964) ral Hargrave v. Wellman, 276 F.2d_ 948 (9th Cir. 1960) Hutton v. United States, 501 F.2d 1055 (6th Cir. 1974) av v. United States,, 303 U.S. ee Le | 58 S.Ct. 468, 82 L.Ed. 607 (1938) Laguna Royalty Co. v. Marsh, 350 F.2d 817 (5th Cir. 1965) Lavender v. Kurn, 327 U.S. 645_ 66 S.Ct. 740, 90,L.Ed. 916 (1946) Mercelis v. Wilson, 235 U.S. , 39 §.Ct. 150, 59 L.Ed. 370 (1915), ; ii 9, 10, 11, 12, 18 16 14, 15 15 15 17, 18 15 10, 11 12, 18 15 Planters Manufacturing Co. v. Protection Mutual Ins. Co., 380 F.2d 869 (5th Cir. 1967) United States v. Atkinson, 297 0.8. L182, 56 8.Ct. 391, 80 L.Ed. 555 (1936) Other Authorities: Amendment 5, U.S. Constitution Amendment 7, U.S. Constitution 9 Wright & Miller, Federal Practice end Procedure, sec. 2558 (1971) iii 10, 15 14, 1l IN THE SUPREME COURT OF THE UNITED STATES October Term 1974 DUDLEY WIDEMAN, Administrator of the Estate of Claude Wideman, Deceased, Petitioner, Vv. MISSISSIPPI VALLEY GAS COMPANY, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT The petitioner, Dudley Wideman, respectfully prays that a writ of cer- tiorari issue to review the suheoent and Opinion of the United States Court of Appeals for the Fifth Circuit entered in this proceeding on January 30, 1975. OPINION BELOW The opinion of the Court of Appeals appears in 507 F.2d 658 (5th Cir. 1975) and is attached hereto as Appendix A. No written opinion was rendered by the District Court for the Northern Dis- trict of Mississippi. JURISDICTION The judgment of the Court of Ap- peals for the Fifth Circuit was entered on January 30, 1975. There was no peti- tion for rehearing filed. This petition for certiorari was filed within 90 days of January 30, 1975. This Court's jurisdiction is invoked under 28 U.S.C. sec. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was denied his 7th Amendment right to a trial by jury by the action of the Court of Ap- peals in affirming the District Court's grant of a judgment n.o.v. to the defen- dant gas company. 2. Whether petitioner was denied due process of law when after trial and jury verdict in nis favor, the District Court granted the defendant gas company a judgment n.o.v. adopting as its basis therefor a different rule of law from that under which the case was tried, no objection at trial being made by the defendant gas company to the rule of law used at trial. CONSTITUTIONAL PROVISIONS INVOLVED 1. U.S. Constitution Amendment 7: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury Shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court off the United States, than according to the rules of the common law. 2. U.S. Constitution Amendment 5: [for complete text see Appendix "B"; pertinent provision is as follows: ] No person. . .shall be. .. deprived of life, liberty, or property, without due process of law;.... STATEMENT OF THE CASE Dudley Wideman, as administrator of the estate of Claude Wideman, deceased, brought suit in the District Court of 4 the Northern District of Mississippi against Mississippi Valley Gas Company. Federal jurisdiction was predicated upon 28 U.S.C. sec. 1332, commonly known as diversity of citizenship, the plaintiff and the defendant being citizens of dif- ferent states. R. 405, 406. The case began in the said District Court on August 22, 1973, and was tried before a six person jury (pursuant to said Court's rules). R. 8, 10. The complaint charged Mississippi Valley Gas Company (hereinafter "the gas company") with negligence in causing the death of Claude Wideman. The jury was so instructed. R. 402. The Court charged the jury that the duty allegedly breached by the gas company was that of "ordinary care required of a reasonably prudent operator of a gas transmission line. . . ." R. 407. It was upon that standard of care that the case was con- 5 ‘ sidered by the jury. R. 426. The jury retired, deliberated, and returned a ver-. dict for the plaintiff, Dudley wideman, in the amount of $100,000.00. R. 426, 427. \ After the plaintiff rested his case the gas company moved for a directed ver- dict in its favor. R. 176, 186-188. After the motion was made in chambers the following occurred: | “THE COURT: ' May I inquire what is the defendant's standard? Is the standard of care in gas operation ordinary or of the. highest? t MR. HOLLAND: (attorney for the gas company, defendant) Ordinary. THE COURT: Motion is overruled. MR. HOLLAND: All right." R. 188, The gas company presented its evidence / and rested. R. 315., The plaintiff pre- sented some rebuttal evidence and tested. R. 364. In chambers the gas company again moved for a directed verdict. Re 366-368. The motion was Overruled. R. 6 ‘ 368. In discussing the instructions requested by the gas company the Court told all counsel that he believed the standard of ordinary care controlled in this case. No objection was then made by any counsel. R. 373, 374. The Court charged the jury, R. 394-423, that the standard of ate owed by the gas company to the decedent was that of ordinary care. Neither plaintiff nor defendant took exception to the Court's charge. R. 423. The gas company filed a motion for a judgment n.o.v. or a new trial. The hearing was held on September 12, 1973. The Court there concluded that the cor- rect standard or legal duty to be ap- plied to this case was not the duty of ordinary care, but only the duty owed to a gratuitous licensee which is to refrain from wanton or willful injury to the licensee. (5th Cir.App. 2, 3, 6). An appropriate order was entered sustain- 7 ing the gas company's motion for a judg- ment n.o.v. (5th Cir.App. 187). From that order Dudley Wideman appealed to the United States Court of Appeals for the Fifth Circuit. That Court's opinion and judgment, affirming the District Court's granting of a judgment n.o.v. to the gas company is found in Appendix A to this petition. From that judgment, Dudley Wideman petitioned this Court to review the Fifth Circuit's judgment by writ of certiorari, timely filed. REASONS FOR GRANTING THE WRIT THE DECISION BELOW IS BASED UPON THE IMPORTANT FEDERAL QUESTION OF WHETHER IN DIVERSITY CASES, FEDERAL COURTS SHOULD APPLY A FEDERAL RATHER THAN A STATE TEST FOR THE SUFFICI- ENCY OF EVIDENCE NECESSARY TO CREATE A JURY QUESTION, AND WHAT THE PROPER TEST IS, IN RELATION THERFTO, IN CONNECTION WITH MOTIONS FOR A DIRECTED VERDICT AND FOR JUDGMENT N.O.V.. THE FIFTH CIRCUIT COURT OF APPEALS HAS DECIDED THOSE ISSUES IN A WAY THAT CONFLICTS WITH APPLI- CABLE DECISIONS OF THIS COURT, AND IN A WAY WHICH CONFLICTS WITH DE- CISIONS OF OTHER COURTS OF APPEALS RELATING TO THESE SAME ISSUES. The decision below is grounded upon the Fifth Circuit Court of Appeals' de- cision in the case of Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969). Sitting En Banc that Court stated that it was well settled in the Fifth Circuit that in diversity cases federal courts apply a federal rather than a state test for the sufficiency of evidence to create a jury question. It noted that the Cir- cuits are divided on that question, i.e., federal v. state test in determining the © sufficiency of the evidence for sub- mission to the jury. 411 F.2d at p. 368. The Court further decided that the stan- dard to be applied in diversity cases, to determine whether there is sufficient 9 evidence to submit the case to the jury on motions for directed verdicts and for judgment notwithstanding the verdict, is not the same in all diversity cases. The standard differs in FELA (45 U.S.C. sec. 51 et seq.) and Jones Act (46 U.S.C. sec. 688) cases, and all other diversity cases which are not based on statute. In fact the Court said as to these two classes of cases: ". . .the formulation of the test of sufficiency of evidence is substantially different." 411 F.2d at p. 373. (emphasis supplied). The original opinion in the Boeing case, supra (411 F.2d 365) was based upon the case of Planters Manufacturing Co. v. Protection Mutual Ins. Co., 380 F.2d 869 (5th Cir. 1967). The Planters’ rationale on the sufficiency of evidence test was based upon the language of this Court in the case of Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 10 (1946). The Fifth Circuit, in rejecting the principles enunciated in the Plant- ers’ case, supra (380 F.2d 869), on this question, also rejected this Court's reasoning and conclusions in Lavender v. Kurn, 327 U.S. 645 (1946). The Court was explicit, saying that we now reject the Planters principle and hold that the FELA test is peculiar to that kind of case as a consequence of the statute it- self and is accordingly not applicable in non-FELA jury trials. 411 F.2d at p. 372. The Court then proceeded to adopt "the" standard to be used in determining whether there is sufficient evidence to submit a case to the jury in connection with motions for directed verdicts and for judgment notwithstanding the verdict in federal diversity cases which are not based on statute, e.g., non-FELA federal cases. 411 F.2d at p. 373-375. The 11 question of sufficiency of the evidence to require submission of a case to the jury presents a constitutional problem. 411 F.2d at p. 377. As Circuit Judge Rives noted, when the majority of the Court repudiates for diversity cases the FELA standard and particularly the for- mula adopted in Lavender v. Kurn, 327 U.S. 645 (1946), it commits an Seies of constitutional proportions. 411 F.2d at p. 377, 378. Thus, when the majority of the Fifth Circuit promulgated what it considered to be the standard for determining the sufficiency of evidence necessary to require the submission of a case to ‘the jury, it acted beyond its authority. It expressly overruled this Court's sufficiency test set out in Lavender v. Kurn, 327 U.S. at p. 653. The standard So adopted in the Boeing case, supra (411 F.2d 365) was applied in the case 12 ianeaieteneeemeeene re 1 sub judice. It is submitted that the 7th Amendment speaks of no double stan- | dard as to the sufficiency of evidence necessary to take a‘case to a jury. It is further submitted that, the time is ripe for. this Honorable Court té so declare. A decision by this Court clear- ly defining the sufficiency of evidence required to make a jury issue in all - federal diversity cases, statutory and non-statutory, would be of great impor- tance and assistance to all’ the lower federal courts and would lend itself greatly to a uniform application of a . constitutional right of utmost importance to every citizen of these United States. In the case sub judice the Fifth Circuit's judgment, affirming the grant- ing of a judgment n.o.v: by the District Court in — oF the gas company, was based etnit (1) the only duty’ owed the deceased by the gas company was to re- 13 frain from willfully and wantonly injur- ing him, and (2) on the record before it, based on the duty in (1) above, reason- able men could not differ about the fact that there was no showing the gas com- pany breached the duty it owed the de- cedent. App. 3. In reaching conclusion (2) above the Court invaded the province of the jury, contrary to the 7th Amend- ment. In applying the duty in (1) above, the Court denied Dudley Wideman due process of law under the 5th Amend- ment. The District Court also did so. Many decisions say that an inscruc- tion not objected to becomes the law of the case. This may be merely one way of phrasing the general principle that failure to object ordinarily bars later challenge to an instruction. 9 Wright sec. 2558 p. 670, 671 (1971); Green v. 14 & Miller, Federal Practice and Procedure, American Tobacco Company, 325 F.2d 673, 676 (5th Cir. 1963), cert. denied 377 U.S. 943, 84 S.Ct. 1349, 1351, 12 L.Ed. 2d 306 (1964); United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936). Further, however, a party who requests an instruction has invited any error in it and cannot complain if the instruction, or one substantially like it is given. 9 Wriqht & Miller, Federal Practice and Procedure, sec. 2558, p. 675 (1971); Hargrave v. Wellman, 276 F.2d 948, 950, 951 (9th Cir. 1960); Mercelis v. Wilson, 235 U.S. 579, 35 S.Ct. 150, 59 L.Ed. 370 (1915). In such a case there is deemed to be no error. In addition the general rule is that an appellate court will not entertain an argument based upon a theory not litigated below. Hutton v. United States, 501 F.2d 1055, 1062 (6th Cir. 1974); Laguna Royalty Co. v. Marsh, 350 F.2d 817, 825, 826 (5th Cir. 15 1965); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). In the case sub judice the defendant gas company told the District Court what Standard of care applied to this case, R. 188, at the close of the plaintiff's case, and again at the close of all the evi- dence. R. 366, 367. The Court charged the jury on the standard of Ordinary care, R. 394-423. No exceptions to the charge were voiced by the defendant, gas company. R. 423. The jury returned a verdict for the plaintiff in the amount of $100,000.00. R. 426, 427. Thus, the law of the case was established, i.e., ordinary care, and there are many factual issues creating a jury issue on the breach of that duty in this record. The District Court and the Court of Appeals acknowledged that fact. App. 2, 5, 6. The disturbance of those facts resolved in plaintiff's favor by 16 the jury, by the District Court and the Court of Appeals was a gross invasion of the province of the jury. This is a vio- lation of the 7th Amendment to the Con- stitution. There was no error of law to be considered. The gas company in effect invited error by not pleading the stan- dard of care urged by 1¢ on its motion for judgment n.o.v. Dudley Wideman was denied due pro- cess of law as well. In effect the gas company on its motion for judgment n.o.v. urged a new defense to the suit. At that point in time the plaintiff was precluded from offering any evidence to rebut «he new defense. In this instance the defen- dant must be bound by the theories under which the case was tried. To allow the gas company to urge a new theory, after trial, upon the Court, certainly cannot be condoned or permitted. Kay v. United States, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 17 607 (1938). h CONCLUSION The basis of the Fifth Circuit Court of Appeals' review of the case sub judice under its decision in the case of Boeing Company v. Shipman, 411 F.2d 365, 373-377 (Sth Cir. 1969) is unconstitutional. It is diametrically opposed to this Court's decision in the case of Lavender v. Kurn 327 U.S. 645, 66 S.Ct. 740, 90 L.Fd. 916 (1946). Both lower Courts invaded the province of the jury--a violation of the 7th Amendment. The defendant gas company invited any alleged error, and thus on appeal there was no error. The question of the sufficiency of evidence to make a jury issue in all federal diversity cases, Statutory and non-statutory, has not been answered by this Court. This case pre- sents the Court with the opportunity to 18 do so. For these reasons a writ of certiorari should issue to review the judgment and opinion of the Fifth Circuit Court of Appeals. Respectfully submitted, WILLIAM S. LAWSON Main Street P.O. Box 848 Tupelo, Mississippi 38801 JOE H. DANIEL Daniel ,Coker ,Horton,Bell and Dukes 405 Tombighee Street P.O. Box 1084 Jackson, Mississippi 39205 19 ‘APPENDIX "A" Dudley WIDFMAN, Administrator of the Estate of Claude Wideman, Deceased, Plaintiff-Appellant Vv. MISSISSIPPI VALLEY GAS COMPANY, Defendant-Appellee. .No. 73-3574 eee United States Court Of Appeals, Fifth Circuit. ' Jan. 30, 1975. ; Appeal from the United States Dis- trict Court for the Northern District of Mississippi. | Before COLEMAN, CLARK and RONEY, Circuit Judges. : 7 RONEY, Circuit Judge: | Claude Wideman was killed in an explosion and fire resulting when a small road grader he was operating on a private residential lot hit an under- ground gas line. . The outcome of this App. l ; ; =eeuememnens appeal turns on a determination of the standard of care owed to Wideman by the defendant gas company under Mississippi law. The jury, instructed that the gas company owed a duty of ordinary care, apparently decided that the gas line easement was not adequately marked and the line itself was not a sufficient depth below the ground. Wideman's es- tate was awarded the sum of $100,000. Notwithstanding this jury verdict, the trial court entered a judgment for defendant on the ground that the jury had been incorrectly instructed as to the standard of care. The court held that the gas company owed no higher duty under the circumstances than to refrain from wanton or willful injury to decedent, and that the evidence was not sufficient for jury consideration under such correct standard. We affirm. App. 2 [1] Essentially, we decide two points: first, a gas company with gas lines buried within the boundaries of a legal easement owes to a person making an unforeseeable extraordinary use of the surface no duty higher than to re- frain from willful and wanton injury, unless and until it has notice of that proposed use; and second, on the record before us, the trial court was correct in the determination that the evidence was such that reasonable men could not differ on the facts that the gas company had received no notice of the extra- ordinary use and that it had not breached its duty to refrain from will- ful or wanton conduct. In 1930 Mississippi Valley Gas Company's predecessor-in-interest ac- guired a valid gas line right-of-way across some property in northern Mis- sissippi which is presently owned by App. 3 Tommy D. Beasley. The recorded ease- ment conveyed a "right of way to lay, construct, maintain and operate a pipe- line" across lands containing seventeen acres described in quarter section terms. The exact path of the easement was not described. The owner reserved the "use and enjoyment of said premises except for the purposes herein conveyed to purchaser." The document further pro- vided that the pipeline was to be laid below plow depth (agreed by the parties to this litigation to be below six inches), with the following paragraph: It is understood and agreed that purchaser (the gas company) shall bury said pipe line below plow depth wherever it crosses any land that may be cleared and in cultivation, and shall also bury said pipe line below plow depth across any land that App. 4 may be in future cleared and put in cultivation. _— In compliance with the depth require- ment, the gas line was originally laid about 36 inches below the surface. It has continued in use from its installa- tion until the time of the occurrence of the accident involved in this case. During that period the character of the land changed from wilderness to resi- dential, and a house was constructed thereon in 1946. The evidence was such that the jury could have inferred that the surface of the land had changed to the point that the pipe line may have been only five or six inches deep at the time of the accident. The area was grown over and had been undisturbed for some time. Mississippi Valley made — periodic foot patrols along the gas line to determine potential problems App. 5 a from erosion, construction, and the like, but there were no signs marking the path of the line except where it crossed a public highway some distance from the point of the accident. — On April 17, 1971, Claude Wideman was operating a road grader on the Beasley property in response to Beasley's request for county assistance in alleviating a drainage problem created by water running off the city- maintained road immediately in front of his property. While Beasley was aware of the general location of the pipe line on his property, neither he nor decedent contacted Mississippi Valley to ascertain the exact location of the line. Mississippi Valley was not otherwise made aware of the fact that decedent intended to Operate the road grader over the gas line. After making a few passes with the grader, App. 6 stiaaiahcatanianiamenianentatenseiniaanenieadinddmaaiaiaeemmtiemmattiinentinneiaemedl decedent struck the gas line with the grader blade and the line ruptured, causing an explosion and fire which resulted in decedent's unfortunate death a short time later. [2] We agree with District Judge William C. Keady that under the cir- cumstances of the above accident, the defendant was entitled to judgment as a matter of law. Absent willful or wanton misconduct, the defendant could not be charged with fault of inaction until it had notice of the “hazard about to be experienced.” Although there is little Mississippi law on the subject, the Supreme Court of Mississippi appears to recognize that in the operation of a gas line, some accidents and injuries are too remote and unforeseeable for a defendant to be held legally liable therefor. As said in a recent case involving a pipe line accident: App. 7 “f \ "The rule is firmly estab- lished in this state, as in nearly all the common law states, that in ordér that a person who © diséie a particular act which re- sults in injury to another shall be liable therefor, the act must be of such character and done in such a situation, that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom, D'Antoni v. Albritton, 156 Miss. 758, 766, 126 So. 836; Williams v. Lumpkin, 169 Miss. 146, 152, 152 So. 842; but that the actor is not bound to a pre- vision or anticipation which would include an unusual, im-' probable, or extraordinary occurrence, although such hap-. pening is within the range of App. 8 * possibilities. Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 617, 145 So. 333;. . ." Larco Drilling & Fxploration Corp. v. Brown, 267 So.2d 308, 310 (Miss. 1972), guoting Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780 (1942) (emphasis added). In Larco Drilling, the Supreme Court held that a county employee opera- ting a bulldozer which struck the defen- dart's gas line, thus causing the oper- ator's injuries was a mere licensee and reversed a verdict in his favor and rendered judgment for the owner of the gas line. The county employee was attempting to fight a forest fire at the time but his presence was unknown to the gas line owner. Unless the likelihood of some acci- dent or injury of the type which occurred in this case was reasonably foreseeable App. 9 by Mississippi Valley, it was under no duty to take action to avoid such an accident. Mississippi Valley had duly recorded its easement on the county land records, thus giving full legal notice of the presence of the pipe line on the Beasley property. It could reasonably be expected that anyone planning use of the property would be aware of the pipe line's existence, if not its location. It could not be foreseeable by defendant that one know- ing of the pipe line would excavate the property without inquiring of Missis- Sippi Valley of the exact pipe line location. There can be little doubt that had Beasley or decedent inquired about the location of the gas line or in any other way conveyed to Mississippi Valley any information from which it could have concluded that the easement was to be App. 10 graded, Mississippi Valley would have been under a duty to take some action-- for example, warning of the danger in- volved, marking the location of the line, or relocating it at a greater depth--to prevent an accident such as the one which did occur. See Young v. Herrington, 312 S.W. 2d 685, 687 (Tex.Civ.App. 1958). But the record is clear that no one did any- thing to place Mississippi Valley on actual or constructive notice of the possibility of this particular road grader activity. Without such notice, a duty for defendant to take action could arise only if this type of acci- dent and injury could have been reason- ably anticipated. No duty would arise as to any “unusual, improbable, extra- ordinary and freakish accident” that, even though possible, a reasonable man would not have considered probable. App. 11 Larco Drilling, supra, 267 So.2d at 310. Other than Larco Drilling, there is little authority from the Mississippi courts from which to evaluate what they would consider as meeting this threshold test of foreseeability in a case of this type. The courts of Texas, which have handled a large number of oil and gas transmission line cases, have had greater opportunity to develop the scope of fore- seeability in this unique area. [3] Texas views the issue of reason- able foreseeability in pipe line cases as centering on whether the use being made of the surface of the right-of-way is one that is ordinary, or one that is extra- ordinary, considering the character and location of the land. The operator has a duty to maintain the pipe line so that it will be safe for those making an ordinary use of the land, but anyone making an extraordinary use of the sur- App. 12 face has the initial burden of either avoiding the pipe line or notifying the operator, who must then take steps to prevent contact. Phillips Pipe Line Co. v. Razo, 420 S.W.2d 691 (Tex. 1967); Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex. 1963). The language used by the Texas Supreme Court is very similar to that used by the Supreme Court of Mississippi in Larco Drilling, suggesting the two courts substantively view the issue in identical terms. The initial question becomes then, whether the explosion in the in- stant case was caused by an ordinary use of the surface. We are not here confronted with'a road grader performing routine mainten- ance along a public thoroughfare, compare Concho Construction Co. Inc. v. Oklahoma Natural Gas Co., 201 F.2d 673 (10th Cir. 1953), but with a scraper operating some App. 13 distance from and not parallel to the road. See generally, Annot., 30 A.L.R. 3d 685 (1970). Plaintiff asserts that the use of county graders to alleviate drainage problems on private property is not uncommon in northeast Mississippi, but this does not make the use of con- struction equipment “ordinary” in the sense that it should be anticipated by the defendant without special notice. Cf. Phillips Pipe Line, supra. "Ordinary" connotes a use that is "usual," “regular,” and “normal,” some- thing of a continuing nature so that a person should be familiar with it. A basement may be dug when a house is built but a house is not built on any particu- lar lot with sufficient frequency to say that the digging of the basement is an “ordinary use” of that lot. Since Mis- sissippi Valley's liability must be de- fined by its conduct with respect to the App. 14 Beasley property, the issue is what might be an ordinary use of the property. What could ordinarily be expected ina semi-rural area might be the opera- tion of automobiles on a dirt driveway over the pipe line, or someone planting ' a garden. We do not consider the exca- vation made of the surface here, however, as Pee that the defendant should be aimvent with protecting’ dgetizin'e it in — ; Operation and maintenance of its’ pipe line. To hold it accountable in this circumstance would impose too heavy a. responsibility for an occurrence that was only remotely and sliahtly probable under Larco Drilling. ! Additional support for this view is found in that line of cases involving ; the operation and maintenance of unin- Sulated electric transmission lines. In ~ , these cases the courts appear to focus on the location of the accident and the _App. 15 forseeability, in that location, cf the conduct of the injured party from which the injury arises. See generally Mis- Sissippi Power & Light Company v. Shepard, 285 So.2d 725 (Miss. 1973). Affirmed. UNITED STATES COURT OF APPFALS FOR THE FIFTH CIRCUIT No. 73-3574 D. C. Docket No. CA~-71-147K DUDLEY WIDFPMAN, Administrator of the Estate of CLAUDE WIDEMAN, Deceased, Plaintiff- Appellant, versus MISSISSIPPI VALLEY GAS COMPANY, Defendant- Appellee. App. 16 Appeal from the United States District Court for the Northern District of Mississippi Before COLEMAN, CLARK and RONEY, Circuit Judges. JUDGMENT This cause came on to be heard on the transcript of the record from the United States District Court for the Northern District of Mississippi, and was argued by counsel; ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this © Court that the judgment of the said District Court in this cause be, and the same is hereby, affirmed; It is further ordered that plain- ; tiff-appellant pay to defendant-appellee, the costs on appeal to be taxed by the Clerk of this Court. , January 30, 1975 Issued as Mandate: February 21, 1975 App. 17 Northern District of Mississippi Piled Feb 26 1975 Norman L. Gillespie, Clerk By _/s/ S. Lumpkin Deputy A true copy Test: EDWARD W. WADSWORTH Clerk, U. S. Court of Appeals, Fifth Circuit By /s/ Louise Wolf Deputy Feb 21 1975 New Orleans, Louisiana APPENDIX "B" No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or in- dictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be de- prived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Constitution, Amendment 5 App. 19 CALAIS RPO IE TREO CERTIFICATE OF SERVICF I hereby certify that on this the 25th day of April, 1975, three copies of the Petition for Writ of Certiorari were mailed, postage prepaid, to Ralph Holland, Esq., a member of the firm of Lumpkin, ‘Holland and Ray, 112 North Broadway Street, P.O. Drawer 409, Tupelo, Mis- Sissippi, 38801, attorney of record for the respondent. I further certify that all parties required to be served have been served. 405 Tombigbee Street P.O. Box 1084 . Jackson, Mississippi 39205 COUNSEL FOR PETITIONER --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0904%3A1. Public record. Not legal advice.