104 Wash. 629 | Wash. | 1919
Appellant, plaintiff below, was engaged in the mercantile business in the Arcade Building, in Seattle. In addition to its salesroom, it occupied the basement underneath for the storage, receiving, checking and shipping of its merchandise. It was a tenant of the premises, the basement of which abuts upon University street. The city maintained a sewer in University street. Radiating from this sewer there was a lateral sewer from and accommodating the premises used by appellant. On March 5, 1917, there was an average heavy rainfall, when
On the date mentioned, and for some years prior thereto, there was in force an ordinance of the city which, inter alia, provides:
“All cellar and basement drains must, when connected to sewer, ... be protected from backwater by backwater valves; said backwater valves must be provided with an air-tight clean-out cover placed immediately above valve, either screwed or bolted in place, capable of being removed for examination or repairs.” Ordinance No. 22,839, § 32.
In the basement there was installed an iron manhole or receiving water tank, some two feet deep and about the same in diameter, narrower at the top, on which was placed, flush with the floor, a latticed circular iron cover having a mesh about two inches square. Within the manhole the intake of the drain pipe formed an elbow, the end of which, turned down and submerged in water when in place, was below the bottom of the stem of the drain pipe, thus forming a trap to prevent odors escaping from the sewer. On
It is the contention of appellant that the incapacity of the main sewer alone caused the flooding, while the respondent claims the backwater valve had been allowed to become unclean and clogged by the fault-of appellant, thus causing the flooding and damage. The trial court found the main sewer inadequate, to which the city took no exception, and also found the appellant negligent in not keeping the backwater valve clean and in proper repair, to which appellant excepted. There is no testimony to show the backwater valve was structurally insufficient or out of repair.
There was ample testimony by the head janitor, superintendent, and assistant superintendent of the building, and by E. M. Barstow, manager of appellant’s mercantile business in Seattle, all of whom witnessed the flooding, to justify the finding that all the water which caused the damage backed up from the street sewer through the drain pipe and manhole into the basement.
On the other hand, O. A. Davis, appellant’s witness, a plumber and member of the firm that put in the plumbing, testified in detail as to its construction and operation, using a backwater valve to illustrate and explain its proper purpose and functions. It appears the backwater valve consisted of a solid door which hung vertically inside the drain pipe from a hinge, and when undisturbed rested against the surface of a circular collar or shoulder. Water escaping from the basement through the manhole and drain pipe would
Counsel for appellant also contends that a part of the flood water or sewage came back into the basement through the toilet. We do not so understand the proof. The rear of the basement was fifteen inches higher than that where the flood occurred. The toilet was situated in the rear basement, but all the witnesses who testified on this point said the damage was done by water pouring back through the manhole in the lower basement. The evidence does not show how the plumbing was constructed from the toilet into the sewer. One witness only, E. C. Barstow, testified there was backwater through the toilet, but the record
The finding of negligence against the respondent is unchallenged. The evidence preponderates in support of the finding of contributory negligence on the part of the appellant. The two acts of negligence concurring and co-operating constituted the proximate cause or occasion of the damage complained of, thus precluding a recovery. Franklin v. Engel, 34 Wash. 480, 76 Pac. 84; 20 R. C. L., Negligence, §§ 88, 89.
Judgment affirmed.