87 Kan. 87 | Kan. | 1912
Plaintiff brought this action to recover for the death of her husband, who died as a result of injuries received in an explosion in a fire cistern of the city, in which he was at work as a laborer in the street department. The jury awarded her $4500 damages and the city appeals from the judgment. The cistern where the áccident occurred is located in West Seventh street, beneath the surface of the street. It had become out of repair, and the walls were cracked and broken. On December 14, 1909, Claude E. Finson, the plaintiff’s husband, with four others, including the city street commissioner, went down into the cistern for the purpose of cleaning it out and repairing the walls. 'The evidence showed that shortly after they entered the cistern the street commissioner struck a match to light his cigar, which caused an explosion of gas that had accumulated in the cistern, and several of the workmen were injured, including plaintiff’s husband, whose injuries resulted soon after in his death.
For many years previous to the explosion a gas main had been located in West Seventh street across the street from the fire cistern. It had been for some years maintained and operated by a gas company under a franchise granted by the city as a part of a system for supplying natural gas to the city and private consumers. Soon after the explosion occurred, the gas company uncovered a large part of this main, and it was found to be in a broken and defective condition; and the service pipes attached thereto were found to be rusted out and perforated with holes so that in many places large quantities of natural gas were escaping therefrom.
Complaint is made because the court sustained a demurrer to the second defense in the answer, wherein the city alleged that the accident was caused wholly by the gross negligence of the gas company in failing
This court, in a number of decisions, has recognized the two-fold functions exercised by cities, and has approved the general doctrine contended for by the defendant. In granting the franchise to the gas company, the city exercised a purely governmental or political function, and could not be held liable for the consequences of its exercising such power or for any failure to exercise its police power by requiring the gas company to keep its mains in repair. (Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490, and cases cited; City of Caldwell v. Prunelle, 57 Kan. 511, 513,
The instruction of which the most complaint is- made is number 17, and reads:
“If you find from the evidence that the gas mains or pipes in the vicinity of the cistern in question were in a defective condition, that gas was escaping therefrom into the cistern and manholes in the vicinity, and that the city had knowledge of said condition, or in the exercise of ordinary care should have known of it, for a sufficient length of time for-it in the exercise of ordinary diligence to have caused said gas pipes or mains to be repaired or the gas to have been shut off from that part of the city, and failed to do so, but permitted said gas pipes and mains to remain in such defective condition and the gas to continue to escape thereform and to fill the cistern in question and an explosion occurred, then I instruct you that such failure on the part of the city would constitute negligence.”
This correctly states the law as applied to the facts. No matter where the gas came from, if, through the negligence of the city it was permitted to remain in the cistern and injured a workman, the city would be liable to the same extent that any employer would be under the same circumstances. It would have been
Counsel for plaintiff have argued in the brief that the city is liable for the reason that the defective gas mains and the cistern were in the street and the city is charged with the duty of keeping its streets and public ways in a safe condition. No claim of this kind is set up in the petition. Besides, as the injury did not happen to anyone using the street as a thoroughfare or public place, the fact that the cistern and the defective pipes were in a street adds nothing to the liability of the defendant. If the fire cistern had been located away from a street upon a lot belonging to or used by the city and it had permitted the cistern to fill with inflammable gas and had negligently sent its workmen there under the same circumstances, it would be liable.
The city makes the further contention that the proximate cause of the explosion was the negligent act of the superintendent of streets in striking a match to light a cigar and that he was not acting at the time
It follows, therefore, that requested instructions 11 to 15, respecting the proximate cause of the explosion, and the negligence of a fellow servant, were rightly refused. It is claimed that the answers returned to the special questions submitted by the defendant were contrary to the evidence and that a new trial should have been granted. Some of the defendant’s witnesses, by whom it was sought to show that plaintiff’s husband had actual or constructive notice of the danger in time to have left the cistern before the explosion occurred, were quite uncertain in their recollection of what was said in his presence. The jury passed upon the weight and credibility of the testimony and the trial court has
The judgment is affirmed.