34 S.W. 508 (Mo. 1896), Fuchs v. St. Louis

Citation:34 S.W. 508, 133 Mo. 168
Opinion Judge:Per Curiam.
Party Name:Fuchs, Appellant, v. St. Louis et. al
Judge Panel:Sherwood, J. (dissenting). Burgess and Robinson, JJ., concur.
Case Date:March 03, 1896
Court:Supreme Court of Missouri
 
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Page 508

34 S.W. 508 (Mo. 1896)

133 Mo. 168

Fuchs, Appellant,

v.

St. Louis et. al

Supreme Court of Missouri, First Division

March 3, 1896

Original Opinion of 133 Mo. 168.

OPINION

[133 Mo. 182] IN BANC.

Per Curiam.

The foregoing opinion of Barclay, J., handed down in Division No. 1, is adopted as the opinion of the Court in Banc. Brace, C. J., Gantt, and Macfarlane, JJ., concurring therein with him, Sherwood, Burgess, and Robinson, JJ., dissenting. Accordingly the judgment of the circuit court is affirmed as to the Waters-Pierce Oil Company, and is reversed and remanded for new trial as to the city of St. Louis.

DISSENT BY:

Sherwood, J. (dissenting).

Action by plaintiff, the widow of Carl E. Fuchs, deceased, to recover damages for the death of her husband, caused by the explosion of "Mill Creek Sewer."

The petition after formal and preliminary statements alleges that the defendant city had built the sewer, and then proceeds to state that a fire broke out on the premises of defendant the Waters-Pierce Oil Company on the twenty-second of July, 1892, where a large stock of oils was stored by that company, and that such company did cause and permit said oils to escape and run into the above mentioned sewer, fill the same with oil, and generate gases therein, etc.

Having made these allegations, the petition then avers that: "Under a license from the then owners of said lot (referring to the lot afterward bought by Carl E. Fuchs in May, 1884) the said sewer was by said city constructed and carried underneath said lot eastwardly toward the said river, and that said sewer was located below the cellar afterward caused to be built upon said lot by said deceased Carl E. Fuchs; that when defendant, the city of St. Louis, obtained said license from said owners, it assumed and agreed with the then owners of said lot and their assigns and became bound to keep and maintain said sewer in good order and to care for the said sewer, so that said lot and any improvements [133 Mo. 183] which might be put thereon would be free from danger of injury on account

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of said sewer and the use thereof."

The petition then concludes thus: "Plaintiff further alleges that said sewer was provided with openings especially designed to carry off any gases which might arise in said sewer and be liable to combustion and explosion and that said sewer and the openings thereof aforesaid on and prior to the said twenty-sixth day of July, 1892, were in the sole care and control of defendant, the city of St. Louis, its agents and servants, yet the said city, its agents and servants, knowing that said defendant, the Waters-Pierce Oil Company, had flooded said sewer with oil, neglected to open said vents and carelessly and negligently failed to take measures and precautions to prevent gases arising and accumulating in said sewer so as to endanger the same; and that between the said twenty-second and twenty-sixth days of July, 1892, gases did arise and accumulate in said sewer in great and very dangerous quantities and on the date last named, and within six months next before the commencement of this suit, ignited and exploded with great force, throwing open said sewer underneath the property of said Carl E. Fuchs, shattering his said building, and also then and there causing the death of said Carl E. Fuchs," etc., etc.

The answer was a general denial by defendant city as well as by defendant company.

The evidence in substance, so far as necessary to state it, was to this effect: Carl E. Fuchs, deceased, owned the building on the east side of Fourth street, seven or eight doors south of Chouteau avenue and about four blocks from the river. This section of the city is a valley and the sewer in question is known as "Mill Creek Sewer." This sewer was formerly a creek [133 Mo. 184] and constituted the natural drainage of a large portion of the city, into which very numerous smaller sewers emptied, and it drained the property in Mill Creek valley from Grand avenue eastwardly, and also drained the city hall and Four Courts. Fuchs' building was located over this sewer, which was built in 1858 or 1859 in the most solid and substantial manner, the stones composing it being very massive, and it ran through the lot on which the store building of Fuchs was situate, in a northwesterly and southeasterly direction, and crossed Fourth street and Broadway, which converged at that point, and were in consequence of such convergence, some two hundred or three hundred feet wide at that point.

On July 26, 1892, the sewer exploded about 4:25 P. M. and in consequence of which, Carl E. Fuchs died on that day. The explosion tore out the front of the store except the iron pillars, also the rear wall of the entire building and the floor of the store; and opened the sewer through the whole length of the building and extended eastwardly between Second and Main streets, where the entire top arch of the sewer was thrown out for a distance of about four hundred or five hundred feet. The street west of the store was not disturbed, but the sidewalk on the west side of Broadway was torn up and also the property next to it. There were covers for the sewer in the middle of the street (where Broadway and Fourth street join) opposite the store, and another on the west side of Broadway about one hundred and fifty feet from the store; this cover was blown off. The one in the street west of the store was an ordinary size manhole, three feet in diameter, with a solid cast-iron lid about three fourths of an inch thick; after the explosion this lid was found broken in pieces, and the contents of the store -- barrels, boxes, bottles, shelving and woodwork, wood floors, joists, [133 Mo. 185] plaster, and wainscoting -- were in the sewer through which the water was rushing. There was a substance in the cellar which looked like an oily mass and had a gaseous smell.

The Waters-Pierce Oil Company's place of business was between Gratiot street on the south, Twelfth street on the east, the railroad tracks on the north, and Fourteenth street on the west, and was ten blocks and two or three stores north of the Fuchs store, and was close to the "Mill Creek Sewer," where the company had large iron tanks for storing oils, from which they filled sheet-iron wagons for distributing oils to retail dealers in the city, etc., etc.

The floor of the cellar of the Fuchs house was composed of a layer of two or three inches of cinders with a cement top constructed on the arch of the sewer. The sewer was fourteen feet wide, twelve feet high and with walls twenty to twenty-four inches thick. At the time of the explosion the river was very high and filled the cellars and first floors of the buildings on the levee. A fire occurred at the defendant company's works on July 22, four days prior to the explosion. The witness giving the foregoing testimony, was Dr. Fuchs, a son of the deceased.

On his cross-examination this witness stated: Generally ordinary sewage is dark and greasy looking; that he could not tell whether any petroleum oil was mixed with the water in the sewer, but that it had an odor like gas, not like ordinary lighting gas, but a greasy smell like petroleum or gasoline, something like that, though he was not sufficiently versed in chemistry to tell what kind it was; that the smell was not like that emanating from the black liquid which he had seen taken from sewers; that the smell was different from the ordinary gases from the gas works; that the manhole at the intersection of Broadway and Fourth [133 Mo. 186] street was about one hundred to one hundred and fifty feet west of the store; that he knew of no manholes in the sewer east of Fourth street; that after the explosion he saw flat cars which had fallen into the opening of the sewer which was constructed under the property before his father bought it, or built on it, and since that time no repairs on the sewer east of Broadway had been necessary; that there was a slight current to the water in the sewer, the day of the accident, but the mouth of the sewer was blocked up by the river; that there was only one sewer inlet at the north

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end of Market at the junction of Fourth and Fifth streets, and one at the southwest corner of Broadway and Chouteau avenue, that the one at the north end of the Market was reconstructed, and it was made of clay pipe with a goose neck to it, to prevent the escape of gases into the open air; this was done at the instance of the people in the neighborhood who complained of the gases and odors thus escaping; that the inlet at the corner of Chouteau avenue and Broadway is intended to drain the surface water from the streets.

Follenius, whose marble works were located at 508 and 510 Chouteau avenue, and who had occupied those premises for about twenty-two years, and who had been familiar with the locality for some twenty-eight years, testified that he remembered the fire which occurred at the oil company's works on Thursday the twenty-second of July. There was a manhole at the corner of Broadway and Chouteau avenue on the west side of the latter. That on Sunday (next before the Monday the twenty-sixth of July) on which the explosion occurred, his place having connection with the sewer, he observed a peculiar smell from the sewer; that it seemed as though mixed with sewer gas and coal oil, which was different from the sewer gas smells which were there most all the time; that he was seated [133 Mo. 187] at his desk when the explosion occurred, and after that went out into his yard which looked as if it had been plowed up with a large plow; that large holes were blown in the top of the sewer three or four feet over, from which issued an odor like he had noticed the day before; that the shock threw the lid off the...

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