181 Mo. 678 | Mo. | 1904
This is an action for damages for the flooding of plaintiff’s cellar with water, whereby a large quantity of its goods stored in the cellar were damaged.
The plaintiff, a business corporation, occupies a house No. Ill South Third street, in the city of St. Joseph, in which it carries on the business of a wholesale dealer in rubber and felt footwear. One Pierce owned the building adjoining, No. 109, which was rented to, and at the date of the injury complained of was occupied by, defendant August, who was a merchant and who used it as a warehouse for the storage of goods. The defendant water company was a corporation which supplied the city with water, distributed through pipes and mains from reservoirs; one of its water mains is located in Third street in front of these buildings, and service-pipes from the mains carry water to the buildings. In front of the building occupied by defendant August is a stone sidewalk under which is an open area designed for the reception and storage of fuel; “that by reason of the great pressure upon the pipes in said locality, consequent upon the high elevation of the reservoirs of said water company, great care was required to provide pipes and water fixtures of sufficient strength and durability to withstand said pressure; that the service-pipe connecting the said street main or pipe with defendant Pierce’s premises had been in use for more than twenty years; that said service-pipe passed from the street through an area opening under the pavement into said cellar and was not sufficiently protected from the cold to prevent the freezing of the water in the pipe in extremely cold weather and causing it to burst; that said August used said building as a warehouse only for the storage of goods and no heat was maintained in said premises, all of which was known to the defendant; that between the street main and the said premises of defendant Pierce there was a shut-off in the service-pipe under the control of all defendants and each of'them, by which the water could be turned off and prevented from flowing through the service-pipe
The defendants answered separately, each a general denial, the water company adding that it had never had any connection or interest with its codefendants touching any of the matters stated in the petition and was therefore improperly joined with them in the suit.
At the trial the evidence for the plaintiff tended to prove as follows:
The situation and occupation of the buildings respectively were as stated in the petition. The area under the sidewalk is lighted through an iron grating two and a half or three feet wide, level with the sidewalk and next to the building. The wall of the cellar next to the open area under the sidewalk, is composed
There was evidence tending to show that before the water had been drained out of the cellar, witnesses looking through the iron grating down into the area under the sidewalk saw the door leading from the area into the cellar partly open, and also that one of the panes of glass was out and the hole covered with paper. Plain
In October before the accident one of the employees of August told him that there was a leak of water in the elevator, and August directed him to go to the office of the water company and tell them to turn the water off as he had no use for it; the employee went as directed to the office of the water company, and delivered the message to a man there behind a desk, and the man said it would be attended to, but the water was never turned off. There was an appliance in the cellar by which the water could be shut off from the elevator, and the employee above mentioned did shut it off, and apparently neither August nor the employee gave the subject any further attention. There was a shut-off in the street by which the water could be shut off from the main to the service-pipe, but no one but the water company could use that; there was no means by which August could shut the water off from the service-pipe.
Plaintiff’s testimony also tended to prove • the amount of damage to his goods in the cellar.
At the close of the evidence, the plaintiff dismissed the suit as to Pierce, the owner of the building which August occupied.
The defendants August and the water company each asked an instruction in the nature of a demurrer to the evidence which the court refused.
The defendant offered no evidence.
The cause was submitted to the jury under instructions requested by the plaintiff to the effect that if the defendants knew that the water was not needed or used
The substance of the instructions given at the request of the defendant August was that if he exercised over the water pipes the care that an ordinarily prudent man in the circumstances would be expected to exercise he was not liable; that if he did not have control of the shut-off in the street he was not liable for not turning the water off by that means; that if the jury did not find from the evidence that the accident was caused by freezing of water in the pipes, the defendant was not liable.
The instructions given at the request of the water
There was a verdict for the defendant and judgment, accordingly, from which the plaintiff appeals.
I. At the threshold respondents make the suggestion that the bill of exceptions is not so identified that it can be recognized in this record.
On the record proper is shown an order of the court, reciting that on that day the plaintiff presented his bill of exceptions, within the time appointed, which was-signed and sealed by the judge and ordered to be filed and made a part of the record. The point is made that the order of the court does not conclude with a recital to this effect, viz.: “which said bill of exceptions is in the word's and figures following, to-wit.” If such a recital had been in the order then the order itself would have been misleading and meaningless unless the bill of' exceptions had been then and there copied into the court record. That of course could not be done. The office-of the bill of exceptions is to set forth those proceedings at the trial which are not required to be entered in the record proper of the court’s proceedings. The bill of' exceptions becomes a part of the record in the case when it is signed by the judge, ordered by the court to be filed, and then filed; but it is never spread on the record of the court, and no order of the court properly calls for it to be so spread. It is suggested by respondents that a different rule is laid down in Reno v. Fitz Jarrell, 163 Mo. 411; State v. Baty, 166 Mo. 561; and State v. Weinegard, 168 Mo. 490; but that is a misunderstanding of
II. The court ought to have sustained the demurrers to the evidence. Even if the plaintiff’s evidence can he construed as tending to show any negligence on the part of either of the defendants, it does not tend to prove the negligence charged in the petition, and does not tend to prove that the injury resulted from the causes alleged in the petition. ■ *
The petition alleges that the service-pipe entered the building through an opening under the sidewalk which was not sufficiently protected from the cold to prevent the water freezing in the pipes. It was the exposure of the pipe passing through that opening that caused the freezing, according to the petition. To what extent, if any, the pipe was exposed in that opening is not very clear. The testimony of the witness Thompson was that the pipe “comes in from the street where the coal hole adjoins the wall at the pavement of the street — * comes in from the street and down under the ground.”1 Mr. McCord said: “The pipe comes into the building from the main probably two and one-half feet under the sidewalk and then an elbow comes this way to the cellar floor and then hack through the house on the north side. ’ ’ The pipe was buried three or four feet under the cellar floor. But whether there was or was not any exposure of the service-pipe in that opening there was no free®
The gravamen of the petition is that, as there was no need of water in the building and as the service-pipe was exposed in the opening, and as there was a shut-off under the control of both defendants, and as those facts were known to both, it was negligence in both to leave the water turned on. The plaintiff’s case is builded on the assumption of those facts and even if those facts made a case, the evidence does not. connect either of the defendants with all of them; there is no evidence to show that the water company knew that the service-pipe was 'exposed, and the evidence does show that August had no right or power to shut the water off. There is, therefore, no evidence tending to show the water company guilty of negligence within the theory of the petition.
The only evidence tending to show August guilty of negligence, if it may be so considered, is the evidence tending to show that the door leading from the cellar to the opening under the sidewalk was found on ■that morning to be partly open, and one pane of glass, broken out and the hole covered with paper. If that was negligence, it was not the negligence specified in the petition, and it certainly did not render the condition of the service-pipe in the opening more exposed. The case which the evidence tends to prove is that the water in the fishtrap froze because the door leading from the cellar into the opening under the sidewalk was left open. The defendants were not in court to answer that case.
Even if there was any evidence tending to show that there was anything wrong about the construction or placement of the fishtrap, August was not responsible for it. He was a mere tenant; those appliances were
The petition states that this pipe and fishtrap had been there more than twenty years and the evidence shows that there was a pressure of one hundred and ten pounds to the inch on the pipe and fishtrap; therefore it is just as reasonable to conclude that the fishtrap broke under the pressure from an infirmity incident to its long service.
III. The plaintiff contends, however, that the defendants are liable regardless of whether they were guilty of any negligence directly causing the accident. This contention rests in the theory that one who brings into his premises anything that is liable to escape, and liable to inflict injury on his neighbors if it should escape, brings it there at his peril, and is responsible for any injury that it may cause.
That contention rests for its authority on the decision in Rylands v. Fletcher, L. R. 3 H. L. 330. In the briefs of the learned counsel for respondents, reference is made to a large number of authorities going to show that the doctrine of Rylands v. Fletcher has not been approved generally in America, and that it has been modified in England. Among the authorities so referred to are Griffith v. Lewis, 17 Mo. App. 605; Murphy v. Gillum, 73 Mo. App. 487; Cooley on Torts, 570; Losee v. Buchanan, 51 N. Y. 476; Brown v. Collins, 53 N. H. 442.
But in the facts, the case at bar is distinguished from Rylands v. Fletcher. In that case the defendants were owners of a mill and for their own use they caused to be constructed on land which they controlled a reservoir in which was accumulated a larg'e volume of
The learned counsel for the plaintiff tried their case on the theory that the defendants were negligent, and that is the only theory on which they could have tried it. '
Complaint is made of the instructions, but we do not consider it material to the merits of the case to discuss them, because in no view of the evidence is either one of the defendants liable.
The judgment is affirmed.