224 A.D. 239 | N.Y. App. Div. | 1928
On April 28, 1924, the plaintiff, then seven years of age, residing in Albany, was taken ill. It subsequently developed that he was suffering from typhoid fever, which it is claimed not only caused a long period of severe illness but left his health permanently impaired in certain respects. In this action brought to recover damages it is claimed that the disease had its inception in unwholesome water furnished by the city, and this condition arose through the negligence of those in charge of the water system in failing to purify the water delivered to consumers, and that the authorities neglected to give warning, although they had notice that dangers existed. u
The admitted facts and the verdict of the jury establish that the
The result was early discovered. Beginning on April seventh the water was tested at the State Laboratory by and under the supervision of Dr. Wachter, a chemist in the Division of Laboratories and Research of the State Department of Health. These tests were made from the tap which was on the same system as that furnishing water to plaintiff’s family. On nearly every day between the seventh and the twenty-third of April, colon bacilli were found in increasing numbers, indicating some definite source of pollution not eliminated by the filtration. About this time there was a sudden increase in gastro-intestinal diseases in the city. The officials in charge of the water department had notice of the defective condition of the conduit, the sudden pollution of the water, and of the outbreak of diseases traceable to impure water, but the warnings were ignored. It was a time for prompt and decisive action. There were two possible sources of contamination — one by impure water passing the filters into the well; the other by introduction of polluted water into the conduit. The exercise of vigilance would have led to discovery of the dangerous condition, and reasonable diligence would have provided the remedy. It was possible by
The presence of colon bacilli in water indicates contamination from human sources. Many types are harmless in the sense that they do not furnish the origin of disease. The typhoid bacilli (scientifically known as “ B-typhosus ”) are the well-recognized cause of typhoid,, fever. While they are difficult of isolation they belong to the colon group, and the presence of colon bacilli in water indicates that there is grave danger that the typhoid bacilli are also present; and this becomes a practical certainty when there is an outbreak of typhoid fever, not directly traceable to other sources of infection.
During April there were two cases of typhoid. In May immediately following there were eighty-three cases of local origin. It was incumbent on the plaintiff to identify the origin of his disease with water polluted through the negligence of the defendant. Of course, owing to the fact that many people are immune and the typhoid germs are microscopic in size, the method of infection cannot be determined by direct proof, but evidence of the source of infection must be circumstantial. To insist that the plaintiff must establish that the infection came from the city water by positive proof would be to require an impossibility. It is sufficient if it is shown by the best evidence available that the bacilli were introduced into his system by means of the city water, so that the jury may by reasonable inference reach a conclusion to that effect. This is not speculation, but a process of logical deduction. (Forbes v. City of Jamestown, 212 App. Div. 332, 335; 217 id. 714.) If the plaintiff is able to establish facts from which it can be said with reasonable certainty that the direct cause of injury was the one for which the defendant was hable, a more stringent rule will not be applied to his case and the jury will be permitted to say that they are satisfied with the proof made, and to determine therefrom that the source of infection was the polluted water. (Stubbs v. City of Rochester, 226 N. Y. 516, 526.)
The plaintiff gave proof excluding other sources of infection. The defendant’s counsel in argument merely suggests that there
The credibility of the witnesses called as experts and the weight and sufficiency of their evidence were questions for the jury. The order of proof in establishing facts was a matter resting in the discretion of the court. (Place v. Minster, 65 N. Y. 89, 105; Downing v. De Klyn, 1 E. D. Smith, 563; Marks v. King, 67 Barb. 225; affd., 64 N. Y. 628; Jarvis v. Metropolitan Street R. Co., 65 App. Div. 490.) No other questions argued here merit discussion.
The judgment and order should be affirmed, with costs.
Van Kirk, P. J., Hinman, Whitmyer and Hill, JJ., concur.
Judgment and order affirmed, with costs.