Boguski v. City of Winooski

• Decision Date: 04 November 1936
• Citation: 187 A. 808,108 Vt. 380
• Parties: STANLEY BOGUSKI, ADMR. v. CITY OF WINOOSKI
• Court: Vermont Supreme Court

187 A. 808

108 Vt. 380

STANLEY BOGUSKI, ADMR. v. CITY OF WINOOSKI

Supreme Court of Vermont

November 4, 1936

October Term, 1936.

Negligence of City in Permitting Pollution of Water Supply---Opinion of Expert as to Source of Typhoid Infection---Consideration of Evidence on Motion for Directed Verdict---Circumstantial Evidence in Civil Case---Evidence Sufficient to Justify Plaintiff's Verdict---Inference to Supply Missing Fact---Mode of Satisfying Plaintiff's Burden of Proof---Negligence Not Arising from Use of City Property for Governmental Purposes---Maintenance of Water System as Private Business---Duty of City Furnishing Domestic Water Supply---Duty with Respect to Additional Supply for Firefighting---Defendant's Motion for Directed Verdict.

1. In action against city for negligence in permitting pollution of its domestic water supply, causing death from typhoid fever of plaintiff's intestate, testimony of expert witness that in his opinion decedent died from drinking water polluted with typhoid bacilli held admissible and not objectionable as requiring an inference to be based upon an inference, in view of the evidence with respect to the presence of polluted water likely to contain typhoid bacilli in the city system, the absence of other possible sources of infection, and the prevalence of other cases of typhoid fever and of intestinal disorders caused by polluted water.

2. In considering exception to denial of defendant's motion for a directed verdict, Supreme Court takes as established all facts favoring the plaintiff which the evidence fairly and reasonably tended to show.

3. Circumstantial evidence may be resorted to, though the case is a civil one.

4. In action against city for negligence in permitting pollution of its domestic water supply causing death from typhoid fever of plaintiff's intestate, direct proof as to source of infection was not necessary, but circumstantial evidence might be resorted to and would be sufficient to justify plaintiff's verdict if there could be drawn therefrom a rational inference that polluted city water was the source of the infection.

5. In such action, while there must have been created in the minds of the jury something more than a mere possibility suspicion, or surmise of the fact that the city water was the source of the infection, the requirements of the law were satisfied if the existence of the fact was made the more probable hypothesis, when considered with reference to the possibility of other hypotheses by reasoning of an ordinarily intelligent understanding.

6. In such action, held that the jury was justified in concluding from the evidence that the presence of the polluted river water in the city system was the source of the infection.

7. In such action, where the only fact no shown by the evidence was the presence of typhoid bacilli in the river water, which was inferable from the evidence with respect to the epidemic which occurred, it was not necessary as claimed by defendant to base an inference upon an inference to establish the cause of death, since what he claimed were successive questions were in reality parts of a single question.

8. In such action, the plaintiff satisfies the burden which the law imposes upon him by proving facts and circumstances from which it is made reasonably to appear that the drinking of the city water was the probable efficient cause of the typhoid fever.

9. In such action, where the by-pass through which the polluted water entered the city system was installed for fire-fighting purposes, but where the negligence charged in permitting the by-pass to be open did not arise from its use for fire protection, the city could not avoid liability for its negligence on the ground that the by-pass was a part of the city's governmental property.

10. That part of a city's water business which consists of supplying its inhabitants with water for domestic purposes is private in character, and the city is held to the same responsibility for the negligent handling of it as an individual or private corporation.

11. While a city was not a guarantor of the purity of the water supply furnished by it for domestic purposes, it was bound to use reasonable care to that end and if it failed to discharge this obligation, it was liable for damages caused thereby to a customer who without contributory fault was injured in his person or property.

12. In action against city for negligence in permitting pollution of its domestic water supply, causing death from typhoid fever of plaintiff's intestate, when by-pass through which river water could be admitted into domestic water system was installed for fire-fighting purposes, held that village making the installation assumed, and city succeeded to, the obligation of exercising due care to prevent it from contaminating the water supply.

13. In such action, defendant's motion for directed verdict on ground that there was no evidence that any typhoid bacilli entered the city water system and that decedent's death resulted from drinking such water held properly denied.

ACTION OF TORT by administrator against city for pecuniary damages arising from death of his intestate from typhoid fever contracted through negligence of city in permitting pollution of its domestic water supply. Plea, the general issue. Trial by jury at the September Term, 1935, Chittenden County Jeffords, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Russell F. Niquette and J. A. McNamara for the defendant.

A Pearley Feen and Louis Lisman for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON and SHERBURNE, JJ., and CLEARY, Supr. J.

OPINION

POWERS

Joseph Boguski, a young man seventeen years old, lived with his parents at 65 West Street in the southwestern part of the city of Winooski. He worked in the dye department of the American Woolen Company's mill, which was situated on the bank of the Winooski River in the same section of the city. On or about January 15, 1934, Joseph became ill and left his work at the mill. He called Doctor Sparhawk on January 24, who took charge of the case, and sought the nature of his ailment. On January 29, by use of Widol test, it was definitely determined that the patient was suffering from typhoid fever. Nurses were procured, Doctor Beecher was called in consultation, but in spite of it all, the boy died on March 1, 1934.

The plaintiff, as administrator of Joseph's estate, brought this suit against the city, claiming that the typhoid came from drinking the water of the city system, which, through the negligence of the city, had become contaminated as hereinafter stated. The plaintiff had judgment below on a verdict rendered in his favor. The defendant excepted.

The following facts were conceded or within the tendency of the evidence when read in a light favorable to the plaintiff:

Many years before the time here in question, the Woolen Company provided itself with a water system to supply it with water for manufacturing purposes and for fire protection. Its system consisted of a 100,000-gallon tank mounted on a 125-foot lower, and a pump installed in the mill, together with pipes, valves, and necessary equipment. By means of the pump, the waters of Winooski River were forced up into the tank, from which they flowed back into the mill as required. This system was in use long before the charter of the city of Winooski was granted. The village of Winooski had, at that time, a water system of its own, which was used for domestic and fire purposes. But its pressure was not adequate for fighting extensive fires, and to supplement the village system, the mill company's supply pipe was equipped with a by-pass with a P I V valve in it. This equipment was so installed that by opening this valve the river water would be forced into the mains of the village system. When this was closed a check valve held back the water from the river and prevented it from entering the village pipes. The purpose of it all was to enable the village to secure added pressure on its mains in case of an unusual fire. It was infrequently availed of by the village, but remained there for use if needed. Later on, after the city took over the village system, a pump was installed at the reservoir to force the water into the mains, and still later, a modern automotive booster pump was added to the city's fire-fighting equipment. So it came to pass some years ago that this mill company system, now owned by the city as we understand the record, was not, and is not now, needed by the city for fire protection. But it is still in use by the mill company, and the by-pass and valve remained in place until removed as hereinafter stated.

About the time Joseph Boguski was taken sick, there were many cases of intestinal disorders in the southwestern part of the city and several other cases of typhoid fever there. All of these cases were in houses supplied with city water. One Arthur Barry was in charge of the city water system during all the time here material. Shortly after December 22, 1933, he discovered that the meter located at the foot of Mayo Street and measuring the water supplied by the city to the woolen mill had not been read. He sent his assistant, Sullivan, down to check this meter. Sullivan returned from this errand and reported that he found the meter running backwards and the valve in the by-pass open, which unquestionably established the fact that the river water was passing through the by-pass into the mains carrying the city water supplied and used for domestic purposes. Sullivan caused the valve to be closed. Shortly after this, the State board of health ordered the by-pass removed, and this was done.

At the time it...