C. C. Anderson Stores Co. v. Boise Water Corp.

• Citation: 372 P.2d 752,84 Idaho 355
• Decision Date: 22 June 1962
• Docket Number: No. 8975,8975
• Parties: C. C. ANDERSON STORES CO., Plaintiff-Respondent, v. BOISE WATER CORPORATION, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 752

372 P.2d 752

84 Idaho 355

C. C. ANDERSON STORES CO., Plaintiff-Respondent, v. BOISE WATER CORPORATION, Defendant-Appellant.

No. 8975.

Supreme Court of Idaho.

June 22, 1962.

J. F. Martin, C. Ben Martin, Boise, for appellant.

Davison, Davison & Copple, Boise, for respondent.

TAYLOR, Justice.

Approximately 1:30 a. m., June 12, 1959, a break occurred in defendant's (appellant's) ten inch water main on 9th street, between Idaho and Bannock streets, in Boise. Water from the ruptured main flowed down Idaho street, over the sidewalk, and into the store building owned and occupied by plaintiff (respondent), damaging merchandise and other property therein.

The main had been laid in 1890, about four and one-half feet beneath the surface of the street. The pipe was purchased by defendant under the trade name of Kalomine, which was composed of wrought iron alloyed with a small amount of lead to inhibit corrosion, and was coated on the outside with asphalt. Defendant maintained 223 miles of main, of which approximately 12 1/2 miles were of the Kalomine pipe. The trenches for the Kalomine pipe were dug in soil consisting of a mixture of gravel and silty-clay loam, and backfilled with sand.

The defendant's records indicate two prior 'serious' breaks in its mains, one of which occurred in a wooden pipe and the other in a 'relatively new steel pipe.' The manufacturer of the Kalomine pipe guaranteed it to withstand hydrostatic pressure of five hundred pounds per square inch, and represented that the pipe was still in service in places where it had been laid for over one hundred years. The break occurred on the underside of the pipe where it had been weakened by corrosion, and consisted of a split about eighteen inches long. Asked the cause of the corrosion, defendant's engineer testified:

'I know of no scientific way you could say what caused the failure in that particular pipe, it could be a mixture of possibly manufacturing impurities, electrolytic corrosion, rust on the outside of the pipe.'

Other portions of the pipe in the area of the break appeared to be in good condition. Four strips were cut from the pipe in the immediate area of the break; one from each of the bottom quarters and one each from the top quarters of the pipe. These strips were subjected to tests for tensile strength by the Gem State Testing Laboratory, from which it was determined that the portions from the upper quarters of the pipe had a tensile strength in excess of 37,000 pounds per square inch, and the pieces from the bottom quarters in excess of 30,000 pounds per square inch. Based on the tests the defendant's engineer testified that the bottom portions of the pipe tested would withstand hydrostatic pressure of 924 pounds per square inch, and the top sections 1100 pounds per square inch.

The normal pressure maintained by defendant in its mains varied from seventy to eighty pounds per square inch, and dropped below that pressure during hours of heavy withdrawal. The maximum pressure placed in the pipe immediately before the break, as recorded by an automatic pressure gauge maintained by defendant, was 78 pounds per square inch on June 2nd, 1959. The pressure was 76 pounds at the time of the break, and as a result of the break the pressure dropped to 55 pounds per square inch.

Through the telephone answering service, subscribed to by defendant, the city police notified defendant's designated employee of the break at 2:08 a. m. At approximately 2:15 a. m. such employee and another commenced closing off the flow of the broken section. This was done by means of seven valves in the downtown grid. At, or about, 2:45 a. m. the pressure was restored, indicating the water had been cut off from the section in which the break occurred.

The foregoing indicates that defendant was not negligent in applying excessive pressure to the pipe, nor in failure to act promptly and effectively after notice of the break. Plaintiff offered no contradictory evidence and does not seriously contend that defendant was negligent in that regard.

This appeal is from a judgment entered upon a verdict in favor of the plaintiff; from order denying defendant's motion for judgment notwithstanding the verdict; and from order denying defendant's motion for a new trial.

Defendant contends the doctrine of res ipsa loquitur is not applicable and that the trial court erred in submitting the doctrine to the jury and permitting the jury to apply it in this case.

The essentials of the doctrine are: (1) that the agency or instrumentality causing the injury was under the control and management of the defendant (Splinter v. Nampa, 74 Idaho 1, 256 P.2d 215); (2) that the circumstances were such that common knowledge and experience would justify the inference that the accident would not have happened in the absence of negligence. Walker v. Distler, 78 Idaho 38, 296 P.2d 452.

In this case it is conceded that the pipe which ruptured and the water therein was under the control and management of the defendant. In the application of the second required element of the doctrine, consideration must be given to other established fundamental principles.

Cities operating in a proprietary capacity are subject to liability for damages arising out of negligence, under the same rules as are applied to private individuals or corporations. Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651; Gilbert v. Village of Bancroft, 80 Idaho 186, 327 P.2d 378; Adam Hat Stores v. Kansas City (Mo.) 316 S.W.2d 594. The authorities applicable to cities acting in a proprietary capacity are therefore applicable to the defendant in this case.

The defendant is not an insurer against injury to others arising out of the installation, maintenance or operation of its water system. Its liability for such injury depends upon negligence. Dunn v. Boise City, 48 Idaho 550, 283 P. 606; Yearsley v. City of Pocatello, 69 Idaho 500, 210 P.2d 795; 71 Idaho 347, 231 P.2d 743; Vitucci Importing Co. v. City of Seattle, 72 Wash. 192, 130 P. 109; Montgomery Ward & Co. v. Lamberson (9th Cir.) 144 F.2d 97. The burden of establishing such negligence rests upon the plaintiff. Vitucci Importing Co. v. City of Seattle, supra; Midwest Oil Co. v. City of Aberdeen, 69 S.D. 343, 10 N.W.2d 701; Union Pac. R. Co. v. Stanger (9th Cir.) 132 F.2d 982; Montgomery Ward & Co. v. Lamberson, supra; Bedal v. Hallack and Howard Lumber Company (9th Cir., Idaho) 226 F.2d 526. The application of the doctrine of res ipsa loquitur does not shift the burden of proof to the defendant. It merely shifts to the defendant the obligation to produce evidence to explain or rebut the inference of negligence raised by the application of the doctrine. Union Pac. R. Co. v. Stanger, supra.

'In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.' Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, at 819.

'Wherever the burden rests, he who undertakes to carry it must do more than create a doubt which the trier of fact is unable to resolve. * * * This is but a particular application of the doctrine of res ipsa loquitur, which similarly is an aid to the plaintiff in sustaining the burden of proving breach of the duty of due care but does not avoid the requirement that upon the whole case he must prove the breach by the preponderance of evidence.' Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89, at 97.

See also Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468.

Plaintiff contends the defendant was bound to take notice that its mains would deteriorate from time and use, and was required to take such measures as ordinary care would dictate, to guard against rupture therein, citing Dunn v. Boise City, 48 Idaho 550, 283 P. 606. That case involved damage caused by the rupture of timbers used in the construction of a wooden flume. The court there said:

'The city was not an insurer of the condition of its drainage system, but was bound to use ordinary care and skill in constructing and maintaining it. It was likewise bound to take notice of the liability of the timbers to decay from time or use, and to take such measures as ordinary care would dictate to guard against the breaking of the flume across the Boise Water Company's canal because of the decay of timbers used in its construction. (Ciatations)

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'The rule that the city, in the absence of notice, express or implied, is not liable for damages accruing by reason of a latent defect, announced by this court when considering the 'sidewalk' cases cited by appellant (Citations), has no application here * * *.' 48 Idaho at 555, 283 P. at 608.

The Dunn case was followed in Yearsley v. Pocatello, 69 Idaho 500, 210 P.2d 795, in which it was said that the city was bound to take notice that pipes in its water system were liable to deteriorate from time and use, and must take such measures as ordinary care would dictate to guard against leakage resulting from such deterioration. However, it was, nevertheless, held in the Yearsley case:

'Third, that the city is not liable for damages occasioned by a latent defect in the absence of notice, express or implied, of such defective condition, i. e., the municipality must have had actual notie or the defect actually existed for such a length of...