194 Mo. App. 151 | Mo. Ct. App. | 1916
This is a suit for damages to plaintiffs’ property, a stock of furniture, caused by water backing up and overflowing from one of the public sewers of the defendant city and flooding the basement of plaintiffs’ store where such furniture was stored. It is alleged that this sewer became clogged and stopped up so that the water backed up and overflowed, flooding plaintiffs’ basement and causing large damage to their furniture; that defendant, after being notified of the obstructed and choked condition of the sewer failed and neglected to take any steps to remove such obstruction or prevent the escape of water from the sewer into plaintiffs’ basement; -that said city had ample time to remove such obstruction and prevent the leakage and overflow but that it negligently failed and refused to do so. These facts were denied and there was evidence pro and con as to defendant’s diligence and efforts to remove the obstruction. The obstruction proved to be an old quilt, but how it got into the sewer is not shown and no negligence is claimed in this respect. This lodged in the sewer and by causing trash and debris to collect there gradually formed an obstruction which proved difficult to remove and same was removed only by taking up the street paveemnt and digging down to and opening up the obstructed sewer.
It may be conceded that the petition is broad enough to raise an issue as to defendant’s negligence in respect to the first and third methods mentioned. As to the second, or pumping, method, the evidence went in without objection that plaintiffs requested and urged the city to use its fire engine, pump and hose to pump the water from the sewer so as to prevent its overflow to their damage. This is the method that was finally employed, but too late as plaintiffs claim, and by pumping the water from above the obstruction and returning it to the sewer below the same, the flood was relieved till the obstruction was finally removed by digging up the sewer. This method, of course, involved the use for this purpose of the engines and apparatus belonging to the fire department and provided by the city for the prevention and extinguishment of fires. The plaintiffs offered to amend their petition during the trial so as to specifically allege negligence in not using in proper time and effectively this means of preventing their injury. The court refused to permit the amendment and instructed the jury to disregard this
The plaintiffs did not request any submission of defendant’s negligence in failing to use proper diligence in taking up the sewer and removing the obstruction in that way, and at the argument disclaimed any liability of the city in that respect.
The defendant’s liability for negligent failure to remove the obstruction in the sewer by probing the sewer was submitted to the jury upon instructions which we have examined and find to fairly submit that issue. There was evidence both ways as to defendant using reasonable diligence in this respect, and the jury’s finding against plaintiffs disposes of this issue.
We will grant that, except for the reason below stated, after the evidence went in without objection as to defendant’s negligence, if such it be, in not more promptly and effectively using the city fire engine and hose in pumping the water from the obstructed sewer, the court should have permitted plaintiffs’ proffered amendment of their petition so as to present this issue. [Carr v. Moss, 87 Mo. 447; Spengler v. Transit Co., 108 Mo. App. 329, 83 S. W. 312.] The serious question presented, however, is whether negligence can be predicated on defendant’s failure to use timely and effectively the ■ city’s fire engines and equipment for this purpose. If not, then any error in refusing the amendment presenting such defense or in withdrawing such issue and the evidence supporting it from the jury or refusing instructions embodying such defense, though a wrong reason was assigned by the court for so doing, cannot work a reversal of the case.
The question of holding a city liable for negligence in not using its fire engines and apparatus promptly or effectively in cleaning out obstructed sewers to avert threatened injury to a property owner is a novel one so far as we are able to find with the assistance of able counsel on either side. It will be granted that a city, having constructed and put in operation a system of sewers, is required to keep same in a reasonably safe and effective condition and to use ordinary care
What we have said disposes of all the errors assigned by appellants, and results in affirming the judgment.