133 Mo. 168 | Mo. | 1896
Lead Opinion
DIVISION ONE.
This action was brought under the damage act (R. S. 1889, chap. 49, secs. 4426, 4427) to recover for the death of Mr. Carl E. Euchs. Plaintiff is his widow and charges that his death was occasioned by the wrongful act or neglect of the defendants, which charge the defendants deny. The defendants are the city of St. Louis and the Waters-Pierce Oil Company.
The case came to trial in the circuit court, in St. Louis. At the close of the testimony instructions were given to the effect that plaintiff could not recover against either defendant. Plaintiff took a nonsuit with leave, etc., and, having, without result, duly moved to set it aside, brought the case here by appeal, after the customary exceptions preserving her case for review.
The plaintiff’s husband was killed by the explosion of a public sewer which was in the possession and control of the city. The question presented by this appeal is whether the facts tend to show a liability for that misfortune, as to either' one of the defendants.
Mr. Euchs had for many years owned a building on the east , side of Fourth street between Chouteau avenue and Convent street. In July, 1892, he occupied the lower floor and cellar of this building as a place of business, where he conducted a saloon. The house
The sewer was called the “Mill Creek Sewer.” It was a large one, maintained by the city.' It was used to drain an extensive territory, as well as to carry off the surface water and sewage from the public buildings in the central part of the city, including the City Hall, the'“Four Courts,” and the jail. The sewer extended from the west beneath and across Broadway (or Fifth street) and Fourth street, underneath and across Mr. Fuchs’ lot, and thence eastwardly, a distance of about four blocks, to the Mississippi river, its outlet. The sewer was provided with several closely covered openings or manholes, which were available for ventilating it. Several of these manholes were located along the line of the sewer near the saloon property, one of them a short distance west of it. The sewer was about fourteen feet in diameter, had an arched top, and was built chiefly of masonry.
July 22nd, 1892, about noon, a fire broke out on the premises of the Waters-Pierce Oil Company, located some ten blocks west, and two or three blocks north, of the saloon. While the fire was in progress, and the city fire engines were throwing streams of water on the burning buildings, large quantities of oil and water ran from the premises of the Oil Company, and spread out among the railroad tracks adjoining. Then a gang of laborers, under direction of the Chief of the St. Louis Fire Department, dug a trench among the railroad tracks and by that means conducted the oil and water into a drain leading to the Mill Creek sewer. This oil was not burning at the time. The men who did this were not on the premises of the Oil Company, and no officer of that company present was seen or
Four days after the fire the explosion occurred, shortly after 4 p. m. The immediate cause was the act of an employe of a shop (not far from the saloon) who' went into a cellar in the course of his business, taking a lighted candle. As he approached the drain or sewer inlet, there was a puff of flame and an explosion which knocked him off his feet, stunned him and set fire to his clothes. He remembered nothing more for sometime thereafter; but another man near him took up the story at that point and testified that the big explosion (which demolished part of the saloon) occurred before you could count ten, after the mishap to the man with the candle. The final explosion made a noise like a cannon, as one witness described it. It tore open the top of the sewer for a long distance, blew out part of the saloon building, and killed the plaintiff’s husband.
The drain opening into the cellar where the explosion originated connected with the Mill Creek sewer.
The presence of a large body of oil in the sewer at the time and place of the catastrophe was established by the testimony of a witness who was sitting at a table in the saloon with Mr. Fuchs when the explosion took place. This witness, an old riverman, was thrown into the sewer and struggled and swam in it a distance of several hundred feet, but was fortunate enough to
There was evidence that the conflagration at the oil works was large and attracted general public attention.
A “gas engineer,” of many years’ experience in manufacturing gases from petroleum and its products, testified for plaintiff that crude petroleum, exposed to a temperature of sixty degrees Fahrenheit, in a confined space, gives off inflammable vapors or gases which will explode when brought into contact with flame; that naphtha is one of the first products of the distillation of crude petroleum and is lighter, and the like vapors will form from it speedier than from crude oil in the same temperature; that these vapors or gases are lighter than the air and rise, and, although not combustible spontaneously, will explode so soon as a flame comes in contact at any point with the gas.
The evidence also indicated that the outlet of the sewer at the river was stopped up, by reason of the high stage of water.
There was evidence to show that some of the large manholes or inlets to this sewer in the vicinity of the saloon were not opened after the oil ran into the sewer; and that the cover of a manhole in the street west of the saloon was thrown into the air by the explosion, and broken in pieces.
The death of the plaintiff’s husband occurred, July 26th, 1892, the day of the disaster, and this suit was instituted on September 16th following.
Irrespective of any inquiry as to the capacity or
Here was a large sewer which ran under business buildings in a populous part of the city, and the sewer exploded in the circumstances described.
There is not, by the way, the slightest claim or suggestion of any negligence on the part of the deceased.
That a large body of inflammable oil had entered the sewer, because of the ñre át the oil works, was a fact which the jury might naturally have inferred the city had notice of, after a lapse of four days, as also of the high water in the Mississippi river at that time, preventing a free discharge of the contents of the sewer in that direction.
The fact that gases form from such oils, upon subjection of the latter to heat, is a matter of ordinary scientific knowledge, of which courts will take judicial notice. It was moreover testified to as a fact in the case before us.
In view of the conditions existing at the time of the disaster, what was the duty of the city; or, rather, what fair inferences may be drawn (from the fact of the explosion and its circumstances) as to the performance or nonperformance by the city of the duty of ordinary care toward its citizens living along the line of the sewer?
It is in evidence that the large vent or manhole in the street, just west of the saloon, was tightly covered ■during the four days from the fire to the explosion, and that when the latter occurred the iron cover of that
The time was summer — the latter part of July. Yet nothing whatever appears to have been done by the city authorities, so far as this evidence indicates, toward averting the effects likely to follow the escape of such a large body of volatile oils into a sewer whose natural outlet was obstructed by the high water in the river, as stated.
All the facts which made the sewer dangerous-might fairly have been found to be within the knowledge of the city officials, after the lapse of time following the fire. Vanderslice v. Philadelphia (1883) 103 Pa. St. 102.
Carefully managed sewers do not, according t'o-the common experience of men, usually blow up and scatter destruction and death. Such a performance is-of itself entitled to consideration, on the issue of care in respect of such property; or as some jurists have-said, “The thing itself speaks.” Byrne v. Boadle (1863) 2 H. & C. 722; Koelsch v. Phila. Co. (1893) 152 Pa. St. 355 (25 Atl. Rep. 522); Judson v. Giant Powder Co. (1895) 107 Calif. 549 (29 L. R. A. 718, 40 Pac. Rep. 1020); Sheridan v. Foley (1895) (N. J. L.) 33 Atl. Rep. 484.
Had the cover of the large opening west of the saloon been removed, so as to allow the direct escape of the gas at that point, it may be that the disaster-would have been avoided. It was not removed; nor' do any steps appear to have been taken in regard te the care of the sewer by the city authorities after the flow of the oil into it on the 22d of July.
It is not always consistent with common prudence to await a catastrophe before taking precautions-against it. Nor is it conclusive of careful management, that a particular disaster has never before occurred.
It appears to us, on the testimony submitted, that it can not be declared as a conclusion of law that the city fully performed the full measure of its duty in respect of the sewer property; and hence that the learned trial judge erred in giving the instruction which ■denied plaintiff the right to go to the jury for a finding of fact as to the alleged negligence of the city. Lee v. Vacuum Oil Co. (1889) 54 Hun 156.
We conclude that the ruling and finding as to the Oil Company should be affirmed; but as to the city the judgment is reversed and the cause remanded for a new trial.
Per Curiam. — The foregoing opinion of Barclay, J., handed down in Division No. 1, is adopted as the opinion of the Court in Banc.
Accordingly the judgment of the circuit court is affirmed as to the Waters-Pierce Oil Company, and is reversed and remanded for new trial as to the city of St. Louis.
Dissenting Opinion
(dissenting). — Action by plaintiff, the widow of Carl E. Puchs, deceased, to recover damages for the death of her husband, caused by the explosion of “Mill Creek Sewer.”
The petition after formal and preliminary statements alleges that the defendant city had built the sewer, and then proceeds to state that a fire broke out on the premises of defendant the Waters-Pierce Oil Company on the twenty-second of July, 1892, where a large stock of oils was stored by that company, and that-., such company did cause and permit said oils to escape and run into the above, mentioned sewer, fill the same with oil, and generate gases therein, etc.
Having made these allegations, the petition then avers that: “Under a license from the then owners of said lot (referring to the lot afterward bought by Carl E. Puchs in May, 1884) the said sewer was by said city constructed and carried underneath said lot eastwardly toward the said river, and that said sewer was located below the cellar afterward caused to be built upon said lot by Said deceased Carl E. Puchs; that when defendant, the city of St. Louis, obtained said license from said owners, it assumed and agreed with the then owners of said lot and their assigns and became bound to keep and maintain said sewer in good order and to care for the said sewer, so that- said lot and any im
The petition then concludes thus: “Plaintiff further alleges that said sewer was provided with openings especially designed to carry off any gases which might arise in said sewer and be liable to combustion and explosion and that said sewer and the openings thereof aforesaid on and prior to the said twenty-sixth day of July, 1892,'were in the sole care and control of defendant, the city of St. Louis, its agents and servants, yet the said city, its agents and servants, knowing . that said defendant, the Waters-Pieree Oil Company, had flooded said sewer with oil, neglected to open said vents and carelessly and negligently failed to take measures and precautions to prevent gases arising and accumulating in said sewer so as to endanger the same; and that between the said twenty-second and twenty-sixth days of July, 1892, gases did arise and accumulate in said sewer in- great and very dangerous quantities and on the date last named, and within six months next before the commencement of this suit, ignited and exploded with great force, throwing open said sewer underneath the property of said Carl E. Fuchs, shattering his said building, and also then and there causing the death of said Carl E. Fuchs,” etc., etc.
The answer was a general denial by defendant city as well as by defendant company.
The evidence, in substance, so far as necessary to state it, was to this effect: Carl E. Fuchs, deceased, owned the building on the east side of Fourth street, seven or eight doors south of Chouteau avenue and about four blocks from the river. This section of the city is a valley and the sewer in question is known as “Mill Creek Sewer.” This sewer was formerly a creek
On July 26, 1892, the sewer exploded about 4:25 p. m. and in consequence of which, Carl E. Fuchs died on that day. The explosion tore out the front of the store except the iron pillars, also the rear wall mf the entire building and the floor of the store; and opened the sewer through the whole length of the building and extended eastwardly between Second and Main streets, where the entire top arch of the sewer was thrown out for a distan ce of about four hundred or five hundred feet. The street west of .the store was not disturbed, but the ,sidewalk on the west side of Broadway was torn up and also the property next to it. There were covers for the sewer in the middle of the street (where Broadway and Fourth street join) opposite the store, and another on the west side of Broadway about one hundred and fifty feet from the store; this cover was blown off. The one in the street west of the store was an ordinary size manhole, three feet in diameter, with a solid cast-iron lid about three fourths of an inch thick; after the explosion this lid was found broken in pieces, and the contents of the store — barrels, boxes, bottles, shelving and woodwork, wood floors, joists,
The Waters-Pierce Oil Company’s place of business was between Gratiot street on the south, Twelfth street .on the east, the railroad tracks on the north, and Fourteenth street on the west, and was ten blocks and two or three stores north of the Fuchs store, and was close to the “Mill Creek Sewer,” where the company had large iron tanks for storing oils, from which they filled sheet-iron wagons for distributing oils to retail dealers in the city, etc., etc.
The floor of the cellar of the Fuchs house was composed of a layer of two or three inches of cinders with a cement top constructed on the arch of the sewer. The sewer was fourteen feet wide, twelve feet high and with walls twenty to twenty-four inches thick. At the time of the explosion the river was very high and filled the cellars and first floors of the buildings on the levee. A fire occurred at the defendant company’s works on July 22, four days prior to the explosion. The witness giving the foregoing testimony, was Dr. Fuchs, a son of the deceased.
On his cross-examination this witness stated: (Generally ordinary sewage is dark and greasy looking; that he could not tell whether any petroleum oil was mixed with the water in the sewer, but that it had an odor like gas, not like ordinary lighting gas, but a greasy smell like petroleum or gasoline, something like that, though he was not sufficiently versed in chemistry to tell what kind it was; that the smell was not like that emanating from the black liquid which he had seen taken from sewers; that the smell was different from the ordinary gases from the gas works; that the manhole at the intersection of Broadway and- Fourth
Follenius, whose marble works were located at 508. and 510 Chouteau avenue, and who had occupied those premises for about twenty-two years, and who had been familiar with the locality for some twenty-eight, years, testified that he remembered the fire which occurred at the oil company’s works on Thursday the twenty-second of July. There was a manhole at the corner of Broadway and Chouteau avenue on the west side of the latter. That on Sunday (next before the Monday the twenty-sixth of July) on which the explosion occurred, his place having connection with the sewer, he observed a peculiar smell from the sewer; that it seemed as though mixed with sewer gas and coal oil, which was different from the sewer gas smells which were there most all the time; that he was seated
Tunstal, another witness, was in the back room of the building when the explosion took place, and Fuchs and Kriebaum were in there with him, and by that explosion he was cast into the sewer, and from which he got out after struggling in the stream a distance of about eight hundred feet; there he encountered water from five to six or seven or eight feet deep; that in the sewer were “sawdust and muck, and petroleum and coal oil, and everything else that you could think of that was nasty;” there was a little current, enough to carry him along, but none right where the debris from the house dammed up the sewer; that there was a large amount of sawdust in solution and general muck, more like molasses or tar, or something of that kind; that petroleum is a thick fluid like tar; and that there was coal oil on top of the water; this he recognized in the darkness of the sewer; that there was "gas either from petroleum or whatever it was that blew up the sewer;”
Two hours after the occurrence of the explosion, another witness, Dr. Bowler, who was in the second story of the Fuchs building when it occurred, states that a characteristic pungent smell was noticeable arising from the opening in the sewer, such as usually arises from sewers; that after the explosion there was smoke or vapor arising from the sewer indicating that there had been fire or combustion in the sewer and that the gas had been consumed; that the ordinary gas which accumulates in sewers from decaying vegetable matter is explosive when ignited under certain conditions; that the density of the gas would have to be sufficient and also sufficient heat to produce the explosion ; that if all the conditions were favorable you would get spontaneous combustion or explosion by ignition, that is, applying a light to the accumulated gas; that sewer gas may explode under certain conditions without the presence of petroleum; that he understood the process of manufacturing gas from crude petroleum, which, and coal oil, are explosive when subject to a certain degree of heat, and that under favorable conditions either of the gases mentioned might explode spontaneously.
Schneider, who lived in the next door south of Fuchs, testified that there were two manholes in the Mill Creek sewer at the junction of Fourth and Fifth
Kuntz, a plumber, testified that seven or eight years ago he connected the premises of the Waters-Pierce Oil Company with the Mill Creek sewer at a point on Gratiot street, opposite Thirteenth, to drain their yard; that there was a grating at the junction of Fourth and Fifth streets over the main sewer to let the water flow in.
Hartung, reporter, testified that .he was present at. the time the fire of the oil company’s works occurred
■ Wilson, a policeman, testified that just as he passed the Euchs place the explosion occurred; that a dense smoke came out of the building which resembled the
Enger, a gas engineer, who had twenty-one years experience in making gas from petroleum and its products, had not studied the matter of how gases originate that are formed in a sewer; that gases arise by ■evaporation; they are not made that way, but are produced that way, by simple evaporation; that some of the constituents of the oil would evaporate; that this was the case with all kinds of oil from crude petroleum down to naptha, gasoline; that illuminating oil that is sold as kerosene would not give off any vapor under ordinary temperature, nor would it produce any gas; “I have tried that many times;” that if you poured such oil on the floor, with a lighted candle in the room, the oil would not take fire; that it only explodes or burns by contact; that crude petroleum gives off a vapor under ordinary temperature, that is, any temperature of over sixty degrees Fahrenheit, which is inflammable by coming in contact with fire; that it can not be called a gas but is a vapor; that if you filled a large vessel with crude petroleum and put it in a closed room, after a time, depending on the atmosphere, there would be gas enough in the room to make it dangerous to go in there with a light; that there would have to be a great deal of ventilation in a room to prevent it being dangerous. “I would be afraid of it even in any case;” that he had given the question of the construction of sewers in a city no attention; that naptha is one of the first products of distillation of petroleum and is a very light oil, and vapors form from it much quicker than they would from petroleum alone; that gasoline is the same as naptha only a little lighter grade.
Asked whether sewer gas or marsh gas would not ignite or burn spontaneously, witness said that the
Humpert, who did business for Peters at French Market, across the street from Fuchs’ place, testified
Kern next testified that he was in front of Peters’' place when the explosion happened, that he saw Hum-pert, who had just come from the cellar with his clothing on fire; that witness took Humpert’s shirt off, the fire from his clothes, and in about the time a person could count ten, a loud report was heard and the front, of Fuchs’ building came out.
At the conclusion of the testimony the court, at the instance of defendants, gave instructions in the nature of demurrers to the evidence, whereupon plaintiff took a nonsuit, etc.
In the first place, there is no evidence to show that the city contracted with the grantors and their assigns of Fuchs to “keep and maintain said sewer in good order and to care for the said sewer, so that said lot and any improvements which might be put thereon, would be free from danger of injury from and on account of said sewer and the use thereof.” This being the case, there is no right arising out of contract which could hold the city liable in the premises.
The petition, therefore, states no facts sufficient to constitute a cause of action; a fatal defect which may be noticed in this court for the first time. Smith v. Burrus, 106 Mo. loc. cit. 97, and cases cited. Or, on which account objection could have been taken in the lower court to the introduction of any evidence. Butler v. Lawson, 72 Mo. 227.
Other matters in regard to the petition will receive comment in a subsequent paragraph.
From the facts in evidence it appears illuminating oil that is sold as kerosene (coal oil) will not give off vapor nor produce gas under ordinary temperature; that it only explodes or burns by contact; that crude petroleum if placed in a large open .vessel in a closed room, would after a short time, if subjected to a tern
There was no evidence, however, as to what the temperature of the sewer was,' nor as to what the effect would be in the way of generating gas or vapor in a sewer where, according to the testimony, the proportion of the crude petroleum, etc., must have been exceedingly small when contrasted with the vast quantities of water contained in a sewer sixteen feet wide, twelve feet high, and from five to six, seven, and eight feet deep, even if we adopt the tare conjecture that there was as much as three thousand or four thousand gallons of oil turned into the sewer. It is true that the testimony shows that naptha, etc., would give off vapor at a much lower temperature than crude petroleum, but there is no testimony showing what the temperature of the sewer was, nor that any naptha, etc., was turned into the sewer on the day of the fire. So.that, under the testimony, we must put out of view as constituents of the litigated injury, naptha and gasoline, because not shown to have escaped from the tanks nor to have been conducted into the trenches leading into the sewer, and besides, conceding such escape and such conducting of those fluids, no temperature of the seiver shown. So that, under the testimony, kerosene or coal oil and crude petroleum must also be excluded from consideration as injury-producing ingredients, because the former does not generate either gas or vapor under ordinary temperature — sixty degrees —nor the latter generate anything but vapor, not gas, under that temperature, and no testimony as to what degree of heat or cold existed in the sewer, and gases, not vapors are alleged in the petition as the cause of the explosion. These things alone would certainly seem
Now, if we say nothing of-a gas or gases which might result from an admixture of those aforesaid, and if we admit that the conditions were also favorable to the generation of gas in the sewer from the oils introduced therein, as one of the incidents of the fire, still we are confronted by the rule which declares that where an action is brought for damages, which are
The words not included within the brackets are those which allege plaintiff’s cause of action, because where a particular act of negligence is specified as a cause of action, there evidence will not be received to support a general allegation of negligence, but the plaintiff will be confined to the act of negligence specifically assigned. Schneider v. Railroad, 75 Mo. 295; Waldhier v. Railroad, 71 Mo. 514.
From which premise it results that no evidence was properly admissible in regard to the words in brackets. Besides, those words were but the statement of a legal ■iconclusion; something not traversable; no issue of fact could be raised upon them. Bliss, Code Plead. [3 Ed.], •secs. 212, 213, 413. Under our code, the facts in pleading are constitutive, and in order to be proved
Taking, then, the facts specifically assigned as negligence, and contrasting them with those offered in evidence in their support, we find that within a radius-of two hundred and fifty feet from Fuchs’ place of business there were four openings through which the gases in the sewer could escape, saying nothing of the sewer connections at Peters’ store, and at Follenius marble works, and so the only thing that remains of' plaintiff’s claim of the city’s negligence in this regard is as to the manhole in the center of the street where Fourth and Fifth streets intersect each other, and that, at the sidewalk on the west side of Fifth street.
Respecting the first one, Dr. Fuchs’ testimony shows that it was constructed with a goose neck so as t-o prevent the escape of gases, having been changed from a straight pipe, because the people in the locality complained of the odors formerly coming from it, so-that even if the covering had been removed from this manhole, no gases could have escaped, and it will not be presumed that plaintiff intended to include in her petition this manhole, but only those whose covers if removed would have given ventilation to the sewer; that is to say, egress for the gases therein.
As to the second manhole cover, it was the only one which could have been removed that was not removed. But did the nonremoval of this one so retard or prevent the escape of gases as to cause the accident?' If it did, then the burden is on jplaintiff to show that it did. It devolved upon her to ‘ ‘prove facts and circumstances, from which it can be ascertained with reasonable certainty what particular precaution the defendant ought to have-taken but did not take” (1 Shearm. &
Thus in Daniel v. Metropolitan R’y Co., L. R. 3 C. P. 216, Willes, J., said: “It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendants might and ought to have resorted to; and I go further, and say that the plaintiff should also show with reasonable certainty what particular precaution should have been taken.” Though the judgment in this ease was reversed on another ground, this doctrine was distinctly affirmed in the same volume (591), and in the house of lords (L. R. 5 H. L. 45), and the language employed by Willes, J., has been frequently cited and quoted with approval. Hayes v. Railroad, 111 U. S. 228; Railroad v. Stebbing, 62 Md. 504; Williams v. Railroad, L. R. 9 Exch. 157; Railroad v. Stout, 17 Wall. 657; Randall v. Railroad, 109 U. S. 478; Lovegrove v. Railroad, 16 C. B. N. S. 669.
In the case at bar there was no attempt to make the proof here indicated as necessary; in short, to connect the neglect to remove the cover of the single manhole with the accident.
In illustration of this principle it has been ruled where the jury are told that if all the evidence satisfied them that there had been negligence on the part of the defendant, although they might not be able to satisfy themselves in what that negligence consisted, they would be authorized to find a verdict for plaintiff, that such a charge was erroneous; that if the jury could not find any rational ground upon which to impute negli
Such are the possibilities of municipal liability which present themselves if the present action can be maintained. And if it can, it might be well to suggest that if the city is thus to be made an insurer, it ought, at least, as some compensation, to be allowed to issue accident policies, and take premiums on the multitudinous risks it is thus compelled to assume. Hitherto it had been supposed that it was the peculiar and exclusive purpose and function of sewers, and that they were
Thus in Dougan v. Champlain, etc., Co., 56 N. Y. 1: “D., plaintiff’s intestate, was a passenger upon defendant’s boat on Lake Champlain. The forward deck was surrounded by bulwarks three or four feet high, with gangways upon each side closed by rails hinged to the bulwarks and of the same height, and coming down upon stanchions in the center of the .gangway, leaving the space beneath open. This deck was not designed for passengers, but they were permitted to come upon it with knowledge of defendant’s employees. D. came out thereon, his hat blew off, he .sprang to recover it, slipped under the gangway rail, fell overboard and was drowned. It appeared that all the boats upon the lake were constructed in the same manner; that they had been so run for many years, and there was no proof tending to show that anyone
So, too, in Hubbell v. Yonkers “plaintiff was riding along one of defendant’s streets, the roadbed of which was thirty feet wide, macadamized and in good condition. On one side, where the street was graded up-about twelve feet, there was a sidewalk ten feet wide, separated from the roadbed by a curbstone eight inches high. There was no fence, wall, or other obstruction to guard the outer edge of the sidewalk. The horse-attached to the wagon in which plaintiff was riding became frightened and commenced to shy, and, in spite of the efforts of the driver, went over the curbstone and sidewalk and down the embankment, carrying the wagon and plaintiff with him. In an action to-recover damages, for injuries received by plaintiff, it appeared that the street had been in the same condition since its opening, over ten years before, and, so far as appeared, no similar accident had occurred. Held, that defendant was not liable, that the accident was one of a class so rare, unexpected, and unforeseen, defendant could not be charged with negligence for a failure to guard against it.” 104 N. Y. 434.
A mule caught its foot in a hole in a railroad track so small that no one could have foreseen such result. Held, no liability. Nelson v. Railroad, 30 Minn. 74.
Similar nonliability was announced where a workman was painting by lamplight the inside of a tank with an approved and long used paint, bought ready for use, and the benzine in the paint caused an explosion. Allison Mfg. Co. v. McCormick, 12 Atl. Rep. 273.
From some unexplained cause a telegraph wire across a track sagged, and hitting a brakeman on top
Like rulings have been announced where accidents have happened from machinery, where their liability to happen is proved only by their actual happening. Richards v. Rough, 53 Mich. 212; Sjogren v. Hall, Ib. 274.
In O'Mally v. Railroad, 113 Mo. 319, the tunnel had been used for thirteen years, and in an action brought for the death of the plaintiff’s husband, employed in the defendant’s tunnel, through which it operated locomotives and cars, and the petition charged that the tunnel, because the fan that ventilated it was-out of repair, was in a dangerous condition, being filled with steam, smoke, and poisonous gases; and that defendant, well knowing this fact, which was unknown to the deceased, negligently ordered him to go into the tunnel, whereby he was choked, strangled, and killed. Held, that, as there was total failure of the evidence to show that the smoke in the tunnel when decedent entered was dangerous to human life, or to show that defendant could have anticipated a condition of the tunnel dangerous to human life, plaintiff could not recover. To the like effect see Cooley on Torts, 91, et seq.; Withers v. Railroad, 27 L. J. Exch. 417; Loftus v. Ferry Co., 84 N. Y. 455; Cleveland v. Steamboat Co., 68 Id. 306; Sutton v. Railroad, 66 Id. 243; Bishop, Noncont. Law, secs. 182, 447; Bishop v.
The same principle is recognized in Flori v. St. Louis, 69 Mo. 341, where the city was held liable to a person for injuries inflicted by the fall of a market house caused by a windstorm of unprecedented force and violence. It is unnecessary to say here whether the case might not have rested on another ground. It is certainly opposed, in any event, to a recovery by plaintiff.
Carrington v. St. Louis, supra, while it correctly states the principle applicable to this class of cases, yet its application in that instance suggests an interrogation point, as to which see sections 58, 60, 210, 974, 975, Dillon, Mun. Corp. [4 Ed.].
Besides, if the theory contended for by plaintiff is to prevail, it would result in casting on defendant city a task impossible of performance, as already stated,
"When a city has, as in this instance, built a sewer in a most admirable manner and has kept such health-preserving conduit free from obstructions, its complete duty, whether considered a public or a corporate one? has been entirely discharged.
For the foregoing reasons the judgment should be affirmed; and for which reasons I dissent from the majority opinion.