Louisville Water Company, Inc., appeals from a judgment entered on a verdict awarding Allan F. and Georgia C. Bosler, d/b/a George Bosler Leather Company, $7,-834.69 for damage done to a stock of merchandise by water from a break in one of the water company’s mains at the intersection of Market and Second Streets in Louisville on December 19, 1963.
The question is whether there was sufficient proof that the break resulted from the water company’s negligence to warrant submission to the jury. We have concluded that there was.
All of the evidence upon which it would be necessary to predicate liability was obtained from Byron E. Payne, the water company’s chief engineer and superintendent, first by interrogatories and then
The break was circumferential in an 8" cast iron pipe 15 feet east of the west curb line of Second Street, seven feet north of the south curb line of Market Street.
Date Size of pipe
1-24-63 “6"
1-26-63 12"
2-2-63 12"
2-3-63 12"
2-4-63 6"
2-9-63 12"
8-3-63 6"
The evidence adduced through Mr. Payne’s oral testimony was as follows:
On direct examination: Other utilities located beneath the surface of this intersection are gas mains, telephone conduits, electric conduits, and sewers. “The sewer in Second Street is in notoriously bad condition.” It is a very old sewer made of stone blocks covered with stone slabs. It is still in use. The earth is composed of sand, gravel and some clay and is generally called sandy loam. It is typical of the soil in downtown Louisville, which is situated over an old river bed structure. “It would be quite an extensive foundation, to have to construct a foundation under any of our pipe, because it would mean piling a considerable depth, because the sewers are very deep and you would have to support from below the sewers.” The main in question was made of cast iron, which “is used by practically everybody in the business.” It is not customary to “dig up and look at pipes here and there to see if they are all right.” The low weather temperatures during the week prior to and including December 19,1963 were: December 13, 25°; December 14, 9°; December 15, 6°; December 16, 5°; December 17, 8°; December 18, 5°; and December 19, -1°. With respect to the condition of the sewers, “the soil beneath the streets in downtown Louisville, being mostly sand or sandy loam, is a fairly good support as long as it is contained. When there is an opening anywhere, say in a sewer, the sand tends to run into the sewer, and that will take the support from underneath the structure.” It is difficult to discover such a condition “without digging up the whole length of the street.”
On cross-examination: The weather conditions (temperatures) at and prior to the time of the break were not unusual. Under normal conditions the type of water pipes in use should last 100 years. The only occasions on which it is customary for the water company to dig up its pipes are when leaks occur or new connections are being made. Numerous leaks and breaks in one spot “would have some indication of the conditions.” With respect to each of the seven breaks that had occurred in the intersection of Market and Second Streets during 1963 the mains had been uncovered
Q— “Every time you had one of those breaks it caused a lot of wash and a lot of shifting of soil under Second and Market Streets, didn’t it?”
A— “It could.”
MR. GARLO VE: “He is asking if it did.”
A— “I don’t know.”
Q— “It is reasonable to suppose that it would; isn’t that right?”
A— “Most occasions, most of the wash went into the sewer.”
Q— “But, I said, it is reasonable to suppose that when you have a break in a water main it causes some shifting of the soil in that vicinity; isn’t that right ?”
A— “It might.”
Q— “And when you have seven breaks in one section in one year you know that you have a situation that is in need of something being done about it, don’t you?”
A— “Most of these breaks you are referring to occurred in Second Street, or other than this particular main.”
Q— “But they were in Second Street in the intersection ?”
A— “Yes, sir; and closer to the sewer.”
Q— “I take it that with these breaks you had some reason to believe that you had a great deal of shift in the soil underneath Second and Market Streets, did you not?”
A— “Well, we did have the Sewer Department — called their attention to the sewer, and they did fix the sewer.”
Q— “When did they do that?”
A— “Well, they did that at the occasion of some of these other breaks here. I am not sure just which one, but I know they worked over there.”
Q— “And you kept on having the breaks in that intersection, without considering this to be a time to dig up and see if the mains in that intersection were okay; is that right?”
A— “We didn’t dig them up for that purpose. If we had dug them up we probably wouldn’t have found anything.”
Q— “How do you know that?”
A— “Well, I didn’t dig them up; so I can’t say I know, but we have dug others up that indicates that the ground under them was perfectly firm.”
Q— “But you didn’t dig them up there at Second and Market?”
A— “No.”
Q— “Well, when you have a wash under the street caused by a broken main it can very easily wash the soil from underneath a section of pipe and leave that pipe over a void; isn’t that right?”
A— “It would generally show up in the hole we have excavated whether it was washed beyond that particular excavation.”
Q— “It can do that?”
A— “Yes.”
Q— “And seven times in that one year before this break there was a possibility of that happening all*108 up and down in that section; isn’t that right?”
A— “Yes, it is possible.”
In Felsway Shoe Corp. v. Louisville Water Co.,
“Unquestionably the Water Company knew that as a result of the 1937 flood the water main in question was in such a condition that a break might be expected. No steps were taken to jack up the main, or to relieve it from strain. As a matter of fact, Felsway sought to show that at least eight other breaks and leaks had occurred in the water main within the 400 block following the 1937 flood and prior to the time of the break in question. * * * Felsway showed through Mr. Schuler that the Water Company knew its water main in the 400 block on Fourth Street had sagged as a result of the flood in 1937, and that such sagging would cause a strain on the main which might reasonably be expected to cause a break. [He said] also that a main such as the one in question could be expected to last 100 years or more. Under the circumstances, Felsway had a right to show that at least eight other breaks and leaks had occurred in the water main in the 400 block on Fourth Street after the 1937 flood. * * * As indicated at the outset, we do not think this case requires a consideration of the applicability of the res ipsa loquitur doctrine. That doctrine was applied in the case of Seale v. Coca-Cola Bottling Works of Lexington, Ky.,
In Stein v. Louisville Water Co., Ky.,
“Where it appears that the condition that resulted in the damage has either been in fact brought to the prior notice of the water company, which is actual notice, or the condition existed for such space of time as would afford the company sufficient opportunity to know of the defect, which is constructive notice, it is deemed sufficient evidence of negligence. McQuillin, Sec.
In both the Felsway and Stein cases a known condition that could cause breaks was held sufficient to justify an inference that the condition did cause the breaks. In this case we have a known condition (the “notoriously bad condition” of the Second Street sewer) that could cause breaks in the mains, plus the actual occurrence of several breaks in this particular intersection, from which we think it can be equally inferred, as in Felsway and Stein, that the condition did cause the breaks. There are, of course, factual differences. We are aware, for example, that the defective condition of the Second Street sewer line may not have been as easily remediable as the washed out condition of the Fourth Street subsurface. The water company has no control over the Louisville and Jefferson County Metropolitan Sewer District and could not be expected to repair or replace the old sewer. But that is one of the problems with which the water company must be expected to cope as an incident of its business. Certainly it is in a better position to do so than are the helpless property owners along the street.
Another distinction between this and Felsway and Stein is that the Fourth Street breaks all occurred in one and the same main, whereas the previous breaks in the intersection of Market and Second Streets during 1963 were in the 12" and 6" pipes. It is our opinion, however, that if this circumstance calls for a different conclusion it was up to the water company to explain why, and for the jury to consider. As it is, and within the framework of the rationale in Felsway and Stein, the intersection of Market and Second Streets is small enough an area to justify an inference that a condition affecting one pipe is likely to affect another in the same manner.
From what we have said with respect to the relevance and probative force of the evidence of previous breaks in the immediate area, it follows that the trial court did not err in admitting that evidence.
The judgment is affirmed.
Notes
. The Boslers’ store building was located at 208 West Market street, four doors west of Second on the south side of Market.