67 S.W. 610 (Mo. 1902), Fuchs v. City of St. Louis

Citation:67 S.W. 610, 167 Mo. 620
Opinion Judge:E. C. TITTMANN (Special Judge).
Party Name:FUCHS v. CITY OF ST. LOUIS, Appellant
Attorney:B. Schnurmacher and Chas. Claflin Allen for appellant. Lubke & Muench for respondent.
Judge Panel:E. C. TITTMANN (Special Judge). Burgess, C. J., Sherwood, Robinson, Valliant, and Gantt, JJ., concur; Brace, J., concurs except as to paragraph one and five of the opinion; Marshall, J., not sitting.
Case Date:March 19, 1902
Court:Supreme Court of Missouri

Page 610

67 S.W. 610 (Mo. 1902)

167 Mo. 620



CITY OF ST. LOUIS, Appellant

Supreme Court of Missouri

March 19, 1902

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel, Judge.


B. Schnurmacher and Chas. Claflin Allen for appellant.

(1) There was no evidence adduced, upon the trial which led to this appeal, as to the quantity of oil, if any, which got into the sewer. But if the proof had shown the presence of a large body of oil, it also showed that there was no practical, feasible method by which the city authorities could have removed it, the mouth of the sewer being submerged by high water in the Mississippi river. And also showed that there was no practical, feasible measure or precaution for preventing the formation of gases, or for ventilating the sewer. There was, therefore, nothing practical which the city could do, or which it omitted to do. Therefore, it was not guilty of negligence. Graney v. Railroad, 157 Mo. 666; Shearman & Redf. on Negl., sec. 15 and 57; Jones on Negl. of Mun. Corp., secs. 230, 231; Troth v. Norcross, 111 Mo. 630; Barney v. Railroad, 126 Mo. 372; Thomas v. Railroad, 109 Mo. 187. (2) No such explosion in a sewer had ever before occurred. The accident was one that could not be foreseen; it was unexpected, unavoidable and inevitable, and for its consequences the city is not liable. Graney v. Railroad, supra; Cobb v. Railroad, 149 Mo. 609; Brewing Assn. v. Talbot, 141 Mo. 674; Sullivan v. Railroad, 133 Mo. 1; Fuchs v. St. Louis, 133 Mo. 182, dissenting opinion and cases therein cited; Henry v. Railroad, 113 Mo. 525; Stone v. Railroad, 171 Mass. 536; s. c., 51 N.E. 1; 4 Am. Negl. Rep. 490; Hutchison v. Boston Gaslight Co., 122 Mass. 219. (3) The evidence showed the presence of explosive gases other than those arising from oil; gases which are usually present in sewers, the result of decaying organic and vegetable matter. An explosion of these gases would as readily (and more readily) account for the explosion as the theory of plaintiff. Under such circumstances, there can be no recovery in the absence of positive proof as to which of the two causes produced the accident. Breen v. Cooperage Co., 50 Mo.App. 202; Searles v. Railroad, 101 N.Y. 661; Dobbins v. Brown, 119 N.Y. 188. (4) The sewer was maintained by the city purely as a sanitary measure. Even if the officers in charge thereof were negligent under the peculiar circumstances of the case, the city would not be liable. Murtaugh v. St. Louis, 44 Mo. 479; Heller v. Sedalia, 53 Mo. 159; Hannon v. St. Louis Co., 62 Mo. 313; Armstrong v. City of Brunswick, 79 Mo. 319; Keating v. Kansas City, 84 Mo. 415; Kiley v. Kansas City, 87 Mo. 103; Ulrich v. St. Louis, 112 Mo. 138; Jefferson Co. v. St. Louis Co., 113 Mo. 619; Hughes v. City of Auburn (N. Y. Ct. App.), 3 Mun. Corp. Cas. 35. (5) The court erred in allowing plaintiff's witness Hunicke to venture expert opinion as to the possible and purely speculative manner in which the sewer might have been ventilated, by means of a fan or blower and a seven horsepower engine, stationed at one of the many inlets or openings to the sewer. This was permitted despite the witness's admission that he had never given the subject of sewers or sewer ventilation any study or attention, and had never seen, read or heard of any practical application of his suggestion, or even attempted himself to indulge in the experiment. He admitted that it was merely an unattempted theory of his own, not based on observation, study or demonstration. (6) The petition alleged two specific acts of negligence against the city: a failure to prevent the formation and accumulation of gases, and a failure to ventilate the sewer by removing the manhole covers "specially designed" therefor. There was no other allegation of negligence. It was, therefore, error to allow evidence relating to the use of a fan or blower. Where specific negligence is charged, evidence of other acts is inadmissible. Atchison v. Railroad, 80 Mo. 213.

Lubke & Muench for respondent.

(1) The rules of law applicable to this case were fully and finally stated and laid down by this court when the case was here before it on the former appeal. The judgment then pronounced became conclusive upon the parties, and no longer open to dispute. Fuchs v. St. Louis, 133 Mo. 168; Overall v. Ellis, 38 Mo. 209; Bank v. Taylor, 62 Mo. 338. A matter once expressly decided by this court can not on a second appeal be again brought into question. It is res adjudicata. Adair Co. v. Ownby, 75 Mo. 282; Conroy v. Iron Works, 75 Mo. 651; Chouteau v. Gibson, 76 Mo. 38; Keith v. Keith, 97 Mo. 223; Chapman v. Railroad, 146 Mo. 481; Hombs v. Corbin, 34 Mo.App. 397; Lane v. Railroad, 35 Mo.App. 567; McKinney v. Harrall, 36 Mo.App. 338; Galbreath v. Newton, 45 Mo.App. 312; Galbreath v. Rogers, 45 Mo.App. 324; Shroyer v. Nickell, 67 Mo. 589; Gaines v. Fender, 82 Mo. 497. (2) That the mouth of the Mill Creek sewer was closed by the high water in the Mississippi river at the time of the fire, and for some time prior thereto, and that this was well known in the community, was abundantly shown by the evidence. Mr. Buse, an employee of the oil company, testified that the yards of the company comprised a half block; that there were on these premises about twenty heavy sheet-iron tanks, varying in capacity from twelve thousand to three hundred thousand gallons; that there was also stored on the premises oil in barrels; that the tanks contained kerosene, gasoline, naptha, crude petroleum, lubricating and illuminating oils and other products of petroleum and also grease, and that the day after the fire these tanks were nearly all found destroyed and the principal contents thereof gone; and that this was also true of the barrels and their contents. Hartung testified that firemen, railroad men and laborers were steadily employed, while the fire was in progress, draining the released oils, with the flow of water, into the sewer; and the fire chief testified that the oil was thus drained into two openings of the sewer; that there were sixteen or seventeen fire engines on the ground and about one hundred and fifty men working there. It was July weather; and it was also well known that the sewer was the receptacle for the steam and other heated substances of the factories and other plants located along it, as well as the drainage and sewage from the city institutions located in that part of the city. Respondent insists that the city, under these conditions, was charged with legal notice that the sewer held in it an extraordinarily dangerous quantity of oils and gases, and that the safety of life and property required of the city authorities diligence and care to open the sewer inlets so that these gases might escape therefrom. (a) The State has recognized the business of handling petroleum and its products to be dangerous to human life, and has put it under regulation by providing for the appointment of inspectors, commonly known as coil oil inspectors. These officials are required to give bond. The act declares certain things in connection with the business, if done, to be criminal, and also declares penalties against the offenders. And for a neglect of duty by an inspector any party aggrieved is entitled to sue upon the inspector's official bond. R. S. 1889, ch. 87, p. 1323; County Court to use v. Fassett, 65 Mo. 418. (b) The chief of the fire department is an officer of the city designated by the charter, and is the agent of the city in all matters connected with his department, including the inspection of all buildings which are in the course of construction. He was bound to take notice of the dangerous character of petroleum and its products. The statute of the State regulating its sale alone gave him warning, because he was bound to take notice of the public statutes of the State. Art. 2, Scheme and Charter, R. S. 1889, p. 2134. The sewer commissioner of the city is a member of the board of public improvements and has special charge of the sewers of the city, and is affected with the same notice as the fire chief. Sec. 36, art. 4, Scheme and Charter, R. S. 1889, p. 2109. Both of these officers were required by the charter to devote their entire time to the duties of their respective positions. And it was their joint duty to take the necessary steps to prevent the calamity which the misuse of the sewer produced. Sec. 11, art. 4, of Scheme and Charter, p. 2134. (c) When the safety of human life is in question, a high degree of care is required in conducting a business in itself lawful. And when, in that business, pipes are used to carry oil, there is a constant duty of inspection, so that the pipes may be kept in proper condition. Lee v. Oil Co., 61 N. Y. (54 Hun) 157. (d) Where water accumulating on the street by reason of obstructions to the catch-basins of the sewers overflows and damages private property, the rule of the surface water being a common enemy which every one may fight off his own premises, has no application, since the property-owner had a right to rely on public sewers, built at the expense of the property-owner for the purpose, among others, of carrying off such surface water. Woods v. Kansas City, 58 Mo.App. 272; 2 Dillon on Mun. Corp. (3 Ed.), sec. 1049; Thurston v. St. Joseph, 51 Mo. 510; Fink v. St. Louis, 71 Mo 52; Smith v. New York, 66 N.Y. 295; Gilluly v. Madison, 63 Wis. 518; Kranz v. Baltimore, 64 Md. 491; Hitchins v. Frostburg, 68 Md. 100; 6 Am. and Eng. Ency. Law, p. 28.

E. C. TITTMANN (Special Judge). Burgess, C. J., Sherwood, Robinson, Valliant, and Gantt, JJ., concur; Brace, J., concurs except as to paragraph one and five of the opinion; Marshall, J., not sitting.


Page 611

[167 Mo. 627] In Banc

E. C. TITTMANN (Special Judge).

This suit, which is an action brought by Agnes Fuchs, to...

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