148 Wis. 396 | Wis. | 1912
In onr judgment the court was entirely-justified in setting aside the special verdict as perverse. There was no controversy in the ease as to the fact that substantial damage had been suffered by the plaintiff and the trial court practically so instructed the jury, leaving only to-them the question of the exact amount thereof. Disregarding the undisputed evidence, as well as the charge of the-court, the jury affirmatively found that there was no damage. Where the answer to one material question of a special verdict plainly shows that the jury made the answer perversely
This contention presents a question of much greater difficulty, and requires a critical examination of tbe evidence bearing on tbe two claims of negligence.
In furnishing water to private consumers the city is acting in a private business capacity and not in its governmental capacity, and it is bound to exercise ordinary care, namely, that reasonable degree of care in view of tbe dangers involved which tbe great mass of ordinarily prudent persons engaged in tbe same or similar business would and do exercise under like circumstances. For any failure to exercise this degree of care, proximately causing injury to another, tbe city is liable to tbe same extent that a private person or a corporation operating a waterworks system is liable; no more and no less. 4 Dillon, Mun. Corp. (5th ed.) § 1670; Jones, Neg. Mun. Corp. § 40; Jenney v. Brooklyn, 120 N. Y. 164, 24 N. E. 274; Piper v. Madison, 140 Wis. 311, 122 N. W. 730, and cases cited therein.
Tbe first claim in tbe present case is that tbe city officials were negligent in tbe matter of construction of tbe plant; that is, that tbe valve which controlled tbe supply of water to tbe elevated standpipe or tank in tbe water tower was negligently placed at a distance of 260 feet from tbe base of tbe tower, when it should have been placed, or another valve should have been placed, inside of tbe tower at the nearest practicable point to tbe angle where tbe feed pipe turns up
The question of the location of the valves in a water system, like many other questions, as, for example, the size and strength of the pipes, the power and quality of the engines and pumps, the location of the pumping station, etc., is a question which manifestly cannot be safely determined by the nonexpert layman. When a private firm, or a corporation ■composed of laymen, proposes to install a system of waterworks they must necessarily on all such questions consult expert hydraulic engineers and be guided by their advice. We assume that it will be admitted at once that this must be so, and that any other course would not only constitute a lack of •ordinary care but an actual invitation to disaster. No authorities seem necessary to support so plain a proposition. Such being the rule applicable to private firms or corporations, it must be held that the same rule applies to the city when it enters this field. It becomes pro hac vice a private proprietary corporation and assumes the liabilities and obligations of a private corporation so far at least as the exercise •of care is concerned.
It is very well known that there are many expert engineering problems upon which able and distinguished engineers do not entirely agree. The disagreement of doctors is proverbial, and the disagreement of experts in other lines of applied science almost equally so. When a practical question arises with regard to the construction of a water system and there is
This is tbe sum and substance of tbe bolding in tbe Piper Case, and it is manifest that it does not exclude tbe testimony which was offered in tbe present case concerning tbe consulta
Even in the absence of this evidence, however, we have not been able to convince ourselves that there is any evidence in the record which would justify a verdict that there was any negligence proximately causing the plaintiff’s injury in the location of the supply valve at the point A, 260 feet distant from the base of the tower.
The evidence bearing on the subject came from hydraulic engineers. Three engineers, called by the plaintiff, testified in substance that the supply valve should be placed within the foundation of the tower or immediately outside thereof, and that it was not good hydraulic engineering to place it at a distance of 260 feet, as it was placed in the present instance. Eour engineers of apparently equal ability, called by the defendant, testified that the actual location of the valve accorded with the best engineering principles and practice. Practically all of the engineers agreed that the only possible added danger resulting from placing the valve where it actually was placed was the liability of a rupture in the 260 feet of pipe between the valve and the tower, and that this danger was so remote as to be practically negligible, because the pipe was not tapped by service pipes and was subjected to the least pressure of any pipe in the system on account of its being located on the highest point of ground.
It is quite apparent that a given method may not be the very best engineering, or even passable engineering, and yet there may be no added danger on that account; in fact there may be less danger. The construction of such a system may be clumsy, or the appliances and materials used unnecessarily heavy and ponderous, so that any engineer would condemn it
Upon another trial the evidence may be different, and the evidence now lacking on this point may possibly be supplied,, but as now it stands we find nothing to justify a finding of negligence proximately causing the injury in the relocation of valve A.
With regard to the second ground of negligence claimed,, to wit, that the water officials were guilty of negligence in not discharging the contents of the water tower by opening the-waste-pipe valve, or by reducing the water pressure and opening fire hydrants in the vicinity, we have had considerably more difficulty. The question is by no means clear. There-were circumstances which would quite strongly tend to justify the belief which the water officials had and on which they acted, namely, that the break was either in the six-inch serV
It is suggested by respondent that the water tower is a nuisance, because it is erected in the public street, and that, irrespective of any other question in the case, it should be held that the city is liable for all damage caused by water escaping from it.
It is sufficient to say that no such claim of negligence was made in the complaint nor upon the trial. It is not within the issues as made by the pleadings, nor was it actually litigated. This renders it unnecessary'to consider the question.
By the Court. — Order affirmed.