Brash v. City of St. Louis

• Decision Date: 26 March 1901
• Parties: BRASH v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

61 S.W. 808

161 Mo. 433

BRASH v. CITY OF ST. LOUIS.

Supreme Court of Missouri.

March 26, 1901.

MUNICIPAL CORPORATIONS — DEFECTS IN SEWER — ACTION FOR INJURIES — INSTRUCTIONS.

Where a city set up the defense that the breaking of a sewer was caused by the act of

God manifested in an unusual rainfall, and there was evidence that the sewer was defective by reason of improper construction and failure to repair, and that the rainfall was of an unusual character, it was proper to charge that if an unusual rainfall would have caused the breaking of the sewer, notwithstanding its defects, then the city was not chargeable with negligence; but if the breaking was caused by such defects, or if it was caused by such defects commingled and concurring with unusual rainfall, then the city was liable.

2. When a requested charge is fully covered by the charge given, its refusal affords no ground for reversal.

In banc. Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Action by Minnie Brash against the city of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

B. Schnurmacher and Chas. C. Allen, for appellant. Clinton Rowell and J. H. Zumbalen, for respondent.

BRACE, J.

This is an appeal from a judgment of the St. Louis city circuit court in favor of the plaintiff for the sum of $650, for damages to her premises and personal property caused by the bursting of Rocky Branch sewer, and the overflow of water therefrom, on the 27th of May, 1896. The errors assigned for reversal are the giving of instructions numbered 1, 2, and 3 for the plaintiff, and the refusal to give defendant's instructions numbered 6 and 7. The defense was that the bursting of the sewer was caused by the act of God, manifested in an "unusual and unexpected rainfall and flow of water." The evidence tended to prove that the front of plaintiff's premises is level with Palm street; that her lot slopes to the rear, where it is three or four feet below the grade of Palm street; that the sewer back of her premises, and for some distance eastward, was built upon still lower ground, on a 20-foot right of way. The sewer at this point, for a distance of 150 feet, was built almost wholly above the surface of the ground; 3 feet of the side walls, and the entire brick arch, which is 5 feet high, being visible and exposed. This sewer was built through this block in 1872 or 1873, and at that time about 1 foot of earth was put on top of it. In the course of a few years this ballasting was washed away, and it was not replaced until after the accident; and for years prior to the accident about 150 feet in length of the sewer was exposed to view and to the elements, as above stated. For several years prior to the accident, a crack about one-half inch wide and 20 feet in length existed in the arch of the sewer where it was thus exposed, and a little west of plaintiff's premises. This crack extended through the arch, so that the water running in the sewer could be seen and heard through it. The evidence further tended to show that the Rocky Branch sewer was built along the course of a natural channel of drainage, Rocky Branch creek; that the ground in said block upon which it was built was low and marshy; that, when the sewer was built, old fence planks were laid under the timbers upon which the walls rest; that at the time of the accident the walls had sunk and settled, and that one row of bricks had fallen out of the center of the underside of the arch at or near the place where it broke; that the sewer broke at the point where it was uncovered and exposed, and just where the crack in the arch was shown to have been; the whole arch, for a distance of 70 to 100 feet, caved in or was broken up; that sewers are built of a capacity to carry off an inch of water per hour, delivered to the sewer, for each acre of territory drained; that, if there is a rainfall of one inch an hour, not all this would find its way to the sewer, and a smaller part thereof would be delivered to the sewer in a sparsely-settled section, where many streets are unpaved, such as this was, than in a closely built up district; just west of the place where the sewer broke there was 15 feet of earth on top of it, and, if the sewer had been covered to grade at the point where it broke, there would have been 12 to 15 feet of earth on the arch; that sewers were designed to be covered with earth, which serves to strengthen them; and that in the city of St. Louis sewers are not built nearer the surface of the ground than 11 feet, and if there had been 10 feet of earth upon the sewer at this point it would, probably, not have burst. The evidence further tended to prove that the sewer burst between 5 and 6 o'clock p. m. of the 27th of May, 1896,...