107 Misc. 427 | N.Y. App. Term. | 1919
Plaintiffs sue for damage to premises occupied by them caused by an inflow of water resulting from a break in a water main. The break succeeded the turning on of full pressure from the neAV Catskill aqueduct. It was shoAvn that the pipes which burst had been laid some forty-seven years ago at a time when the art of casting was not as Avell developed as at present; that such pipes undoubtedly corrode and groAV iveaker with use; that the city authorities Avere Avell aAvare that there Avas some danger of bursting as a result of the proposed increased pressure; that the pressure previously employed was twentj five pounds to the square inch; that ten additional pounds were first added; that the pipes thereupon broke in tAvo localities in the neighborhood of plaintiffs’ premises; that two Aveeks thereafter an additional ten pounds pressure AA7as introduced, and that íavo days later the break occurred Avhieh is the subject matter of the present action.
It is urged on behalf of the city that no causal connection Avas shoAA’n betAveen the break in the pipes and the increased pressure. The question Avhether an effect complained of has been adequately traced to an actionable cause is necessarily one of degree, and must be determined in each particular case according to all its circumstances. I think it suffices Avithout rehearsing the facts to say that the evidence is sufficient to convince a reasoning mind — perhaps even beyond a reasonable doubt — that the increased pressure caused the break.
The city also contends that it is not chargeable Avith negligence under the general rule Avliich accords to a municipality greater leeway in these matters than to an individual, and also, because, as it claims, it Avas a fair inference from the testimony adduced at the trial that there Avas no feasible mode of testing the pipes
The more liberal rule as to the city’s vigilance and diligence has no application. Here no question of notice or knowledge is involved, it being apparent that all the facts were known to, and the situation perfectly realized by, the appropriate city authorities. Whether, and to what extent, typical tests might have been made I do not think has been adequately developed at the trial; but assuming that the only perfect!y reliable test would have been to examine all the pipes at a prodigious expense, the city cannot escape liability by voluntarily avoiding such expense and then practically' making a more economical test at plaintiffs’ cost. The method adopted amounted to a test in practice, and the two breaks first referred to were a sufficient indication of what might and actually did thereafter follow. The second test in practice resulted in the break which caused the damage here complained of. I have no hesitation in holding that while the method adopted may have been on the whole a wise one from the standpoint of economy, the city cannot escape liability for its negligence by showing that the proper way of performing this work would have been more expensive.
Judgment reversed and judgment directed for' the plaintiffs for the full amount, with costs, together with thirty dollars costs of this appeal.
Judgment reversed, with costs.