122 Ky. 639 | Ky. Ct. App. | 1906
OPINION by
— Reversing.
The livery stable of Ri L. McDade in Shelbyville was burned on May 11, 1904, and he brought this action against the Shelbyville Water & Light Company to recover for the loss, on the ground that it occurred by reason of the company’s failure to have a supply of water in its mains as required by its contract with the city. The material part of the contract is contained in the following sections' of the city ordinances;
“Sec. 227. Said grantee, its legal representatives, assigns or successors shall test said works on their completion, under the supervision of the said board of council, and when said works , shall throw water from three separate hydrants at one time, fifty feet high, through one hundred (100) feet of hose and a one-inch nozzle on the level of Main and Fifth street
“Sec. 236. The city of Shelbyville agrees to use the said fire hydrants only for the extinguishment of fires., except when used as otherwise herein provided for, and to make good to the-said grantee, its legal representatives., assigns and successors any injury wihich may happen to any of said hydrants when used by said city, or any officer or servant or agent of said city, if same is done by the fault of said-city, officers, agents or servants-, and hereby agrees and promises to pay rent for said fifty-four hydrants at the rate of $2,500 per annum for the said term of thirteen years and six monts, or $2,500 per annum for such part of the said thirteen years and six months-, as said waterworks shall be- operated under this ordinance, which rental the city of Shelbyville hereby agrees to- pay in semiannual installments of $1,250 each on the first days of March and September in each year during said term to said grantee, its legal representatives, assigns and successors.; provided, however, that all forfeitures under this ordinance, which may be due said city at the time specified for the payment of any hydrant rental shall be deducted from the amount of such payment.
“Sec. 237. The said grantee, its legal representatives, assigns- and successors shall constantly, day and night, except in cases of an unavoidable accident, keep all of said hydrants supplied with water, and at night the arc lights herein named with, electricity, for service herein provided for. The city shall have
The proof for the plaintiff on the trial showed
The court allowed the plaintiff to prove by J. M. Hammond and Jess Russell that they were working a few hundred yards from the pumping station, and when they heard the fire alarm and saw the smoke they came right over to the water works to find out where the fire was; that Hubert Duvall was there running the works; that they met him near the reservoir out in the grounds-, and asked him where the fire Was, and he answered that there was a big fire in
In Landhorn v. Allnut, 4 Tan. 511, the question was whether a ship remained at. a port for an unreasonable' time. Letters from the plaintiff’s agent to the plaintiff containing admissions which would have been admissible if made by the plaintiff himself were held incompetent against him. In Mateer v. Brown (Cal.) 52 Am. Dec., 303, the plaintiff sued the defendant for a lot of gold which was lost. He proposed to prove that Higgins, the defendant’s barkeeper, had said that the plaintiff had made his pile, and he, opening a closet and raising a bundle, said it was the plaintiff’s, and was about $6,000. The evidence was held incompetent. The court, after quoting the rule of evidence as above, said: “Were the declarations of Higgins a part of the res gestae, according to the above rules? We think not. There was no act done by him, in his character of agent, at the time of making them, which would have been admissible evidence against the defendant, and which such declarations were calculated to qualify or explain. They were not made at the time he received the deposit. Had they been then made, they would, perhaps, have been competent. They were made when Pliggins took the bundle out of the closet to exhibit it to a stranger. This was not done by him in the discharge of his duties as agent, and the declarations accompanying that act were but hearsay. ’ ’ To same effect, see 16 Cyc. pages 1003, 1006, 1007, and cases cited in the notes.; 3 Wigram on Evidence, section 1797, and note.
Duvall was not acting as agent in any sense for his
The court refused to allow the defendant to explain how and why tire direct pressure w!as applied to the mains. The defendant offered to show that Duvall was ordered not to apply the direct pressure at the power house unless he received orders from the manager in the city, who would give the order when the magnitude of the fire required it, and that on the occasion in question the direct pressure was applied when ordered. This evidence should have been admitted, for otherwise the jury might have inferred from the fact that the direct pressure Was applied that there was want of water in the standpipe.
In lieu of instruction 2, the court on another trial Will tell the jury that it was incumbent upon the defendant under its contract to' maintain such a pressure of water upon its mains as would throw water from three separate hydrants at one time fifty feet high through 100 feet of hose and a one-inch nozzle on the level of Main and Fifth streets in the city, and that-if it failed to' do this, and by reason of such failure the plaintiff’s property was burned, when it would not otherwise have been destroyed by fire, they should find for the plaintiff the reasonable and fair value of the property so destroyed, with interest from May 11, 1904. The instructions we have indicated,
Judgement reversed, and cause remanded for a new trial.
Petition for rehearing by appellee overruled.