Aschoff v. City of Evansville
| Decision Date | 15 November 1904 |
| Docket Number | 4,862 |
| Citation | 72 N.E. 279,34 Ind.App. 25 |
| Parties | ASCHOFF v. CITY OF EVANSVILLE |
| Court | Indiana Appellate Court |
From Superior Court of Vanderburgh County; J. H. Foster, Judge.
Action by Peter Aschoff against the City of Evansville. From a judgment for defendant, plaintiff appeals.
Reversed.
H. M Logsdon, D. Q. Chappell and A. J. 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 seventy feet; that 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 water-works 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 fuzed charges according to the amount used; that it was appellee's duty to supervise the construction, maintenance, operation, altering and repairing of said system of water-works; 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 employes, 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 was 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 burst 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 appellant avers that it and its representatives wilfully 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 water-works inspector, agents, servants and employes 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, rusted, cracked, corroded, worn-out and wholly insufficient and unsafe for the purposes for which they were intended, all of which the defendant, its servants and employes, at the time of the damages hereinafter complained of, and for a long time prior thereto, well knew, and that defendant, its water-works 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 water-works agents and representatives, in failing and neglecting to replace or repair said water plug and its connecting pipes, as it was its duty 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 employes, at the time of the damages hereinafter complained of, and for a long time prior thereto, had knowledge; 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 water-works system, by which water was pumped into and forced through said mains, pipes, plugs and hydrants throughout said city were 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 the same did at divers times and places frequently burst, crack, and become useless and unsafe, and said water plug and its connecting pipe became and were unsafe and unfit, from said named causes, to withstand the great force and pressure in time of fire of said new pumping-station, all of which defendant then and there well knew; yet plaintiff avers that the defendant carelessly and negligently failed to repair and replace the worn and defective parts of said old mains, pipes, plugs and hydrants, and carelessly and negligently failed, prior to the injuries herein complained of, to replace or repair said water plug and its connecting pipe * * * as it was in duty bound to do; that said defendant from time to time hires and employs * * * water-works inspectors and representatives, whose duty it is to examine and determine the condition, quality and safety of said mains, pipes, plugs and hydrants, and who, by the exercise of reasonable diligence and ordinary skill and care, could have discovered the unsafe and unsound and dangerous and defective condition of said water-plug and its connecting pipe as aforesaid, in time to have so repaired or replaced the same as to enable them to withstand...
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