Aschoff v. City of Evansville
| Decision Date | 15 November 1904 |
| Docket Number | No. 4,862.,4,862. |
| Citation | 34 Ind.App. 25,72 N.E. 279 |
| Parties | ASCHOFF v. CITY OF EVANSVILLE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Vanderburgh County; Jno. H. Foster, Judge.
Action by Peter Aschoff against the city of Evansville. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.
Logsdon, Chappell & Veneman, for appellant. A. W. Funkhouser, for appellee.
Appellant's complaint was in six paragraphs, to each of which appellee's demurrer for want of facts was sustained. Refusing to plead further, judgment was rendered against him, from which he appealed.
It is alleged in the complaint that appellant suffered two separate injuries occurring practically in the same manner. The first, second, and third paragraphs of complaint relate to the first occurrence, while the fourth, fifth, and sixth paragraphs are based upon the latter one. The substance of the first paragraph is: That appellant on the 22d day of July, 1901, occupied a building situated on a certain lot in Evansville, at the southeast corner of Vine and Fifth streets, consisting of a two-story brick building, with a cellar the full width of the building, and extending back about 70 feet. Part of the first and all of the second floor were used by him as a dwelling, and in the front part of the first floor he conducted a saloon. That on said day he had a large and valuable stock of goods and other personal property stored in said cellar, which was dry, well ventilated, and proper for such use. That on said day, and long prior thereto, appellee was a municipal corporation organized under the laws of this state, and that by virtue of its charter it was the owner and in the absolute management, control, and possession of the only system of waterworks within its limits, consisting of a pumping station, mains, pipes, hydrants, and plugs, for protecting the property of its citizens from fire, and for supplying them with water at certain fixed charges, according to the amount used. That it was appellee's duty to supervise the construction and maintenance, operation, altering, and repairing of said system of waterworks. That, as a part thereof, it had erected and on said date maintained a water plug in the sidewalk near appellant's building, connected by certain mains and pipes with its pumping station, through which water was forced and transmitted in pursuance of the objects for which said system was operated and maintained. That on said day, while plaintiff was engaged in transacting his business and living in the said building as aforesaid, a fire broke out in some building near plaintiff's premises, and, for the purpose of procuring water to extinguish it, appellee, by its firemen and employés, attached a line of hose to said water plug, and turned on the water with great force, and threw the same upon said fire. That extra power and pressure were added at the pumping station, and the water was being driven with great force through said plug and its connections, by reason of which a certain pipe connecting said water plug with the water mains bursted and fell to pieces, causing and permitting the water flowing through said pipe and plug to force its way through and underneath the walls of appellant's building into his cellar, filling it with “mud, slush, slime, and water to the depth of twelve feet,” damaging and destroying his goods and other personal property stored therein, and causing him great expense in cleaning said cellar, all to his damage in the sum of $500. That immediately after the bursting of said pipe as aforesaid, and before the damage had resulted as aforesaid, appellee was notified of the breaking of said pipe in time to have prevented said damage to plaintiff's property, which it was then and there its duty to do, but he avers that it and its representatives willfully refused and neglected to do so for a long time, and until after said cellar was completely filled as aforesaid, causing such loss and damage. That said damage was caused by the “negligence of the defendant, its said waterworks inspector, agents, servants, and employés, in failing and refusing and neglecting to shut off the water from running through said broken pipe and plug into said cellar as aforesaid, all to plaintiff's damage,” etc. In the second paragraph the general situation is described, and it is averred that said water plug and its connecting pipe “were on said date, and for a long time prior thereto, defective, and rusted, cracked, corroded, worn out, and wholly insufficient and unsafe for the purposes for which it was intended, all of which the defendant, its servants and employés, at the time of the damages hereinafter complained of, and for a long time prior thereto, well knew, and that defendant, its waterworks agents and representatives, had for a long time prior thereto negligently and carelessly failed to repair said plug and its connecting pipes, and that while the water was being driven with great power and force through said water plug and its connections, and by reason of the defective, cracked, corroded, and worn-out condition of the said water plug and its connecting pipe as aforesaid, and on account of the carelessness and negligence of the defendant, its waterworks agents and representatives, in failing and neglecting to replace or repair said water plug and its connecting pipes, as it was in duty bound to do, the said water plug and its connecting pipe thereupon broke, burst, and fell to pieces, permitting the water flowing through the same to escape,” etc. In the third paragraph appellant averred that said water plug and its connecting pipe “were located and established by defendant long years ago, and on the 22d day of July, 1901, and for a long time prior thereto, had become defective, rusted, cracked, corroded, worn out, and wholly insufficient and unsafe for the purposes for which they were intended, of which the defendant, its servants and employés, at the time of the damages hereinafter complained of, and for a long time prior thereto, knew; that for many years prior to the year 1900 the only pumping station and machinery owned, operated, and used by the defendant in connection with the operation of said waterworks system, by which water was pumped into and forced through said mains, pipes, plugs, and hydrants throughout said city, was old, insufficient, and inferior in power and capacity; and that, prior to the damages hereinafter complained of, the defendant had erected and completed a new, modern, and much more powerful pumping station and machinery, and operated, and was on said date operating, the same, by means of which water was and is pumped into and forced through the old mains, pipes, plugs, and hydrants theretofore used in connection with the old pumping station as aforesaid with much more and greater pressure, force, and power than used or could be used with said old pumping station, as defendant well knew; that at all times, in the event of fire, an extra and additional fire pressure was and is added at the pumping station, to increase the volume of water transmitted through said mains, pipes, plugs, and hydrants, and the pressure and power so added to the said new pumping station during times of fire was and is much stronger, and casts a much larger volume of water, and with much more force and pressure, than was or could be had under and by said old and inferior pumping station, all of which defendant then and there well knew; that the said mains, pipes, plugs, and hydrants, and particularly said plug and its connecting pipe, located at the corner of Fifth and Vine streets, as aforesaid, by reason of long and continuous use and service prior to the damage hereinafter complained of, had become and was defective, cracked, corroded, worn out, and wholly insufficient to withstand the increased volume, force, and pressure in times of fire exerted by said new and powerful pumping station, and at the same time did at...
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