Doyle v. South Pittsburgh Water Co.

• Decision Date: 17 March 1964
• Citation: 414 Pa. 199,199 A.2d 875
• Parties: Robert A. DOYLE and Frances P. Doyle, his Wife, Appellants, v. SOUTH PITTSBURGH WATER COMPANY, a Corporation.
• Court: Pennsylvania Supreme Court

Page 875

199 A.2d 875

414 Pa. 199

Robert A. DOYLE and Frances P. Doyle, his Wife, Appellants, v. SOUTH PITTSBURGH WATER COMPANY, a Corporation.

Supreme Court of Pennsylvania.

March 17, 1964.

Rehearing Denied May 12, 1964.

James R. Hornick, Clair V. Duff, Pittsburgh, for appellant.

James F. Manley, Burns & Manley, Pittsburgh, for appellee.

Before MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

MUSMANNO, Justice.

On December 31, 1961, the home of the plaintiffs in this case, Robert A. Doyle and his wife Frances P. Doyle, was destroyed by fire. The destruction could have been averted if the Pittsburgh Fire Department, which had responded to the fire alarm, could have obtained water from the fire hydrants, of which there were at least five in the immediate area of the house. None would yield a stream of water for the hoses ready to carry the extinguishing element to the flames which began small but eventually leaped to proportions which engulfed and consumed the dwelling.

On September 18, 1962, the plaintiffs filed in the Court of Common Pleas of Allegheny County a Complaint in Trespass against the South Pittsburgh Water Company averring that it was under contract to provide water for fire hydrants in the vicinity of their dwelling and to maintain those hydrants for use in emergencies for the sole purpose of fighting fires in and about the vicinity of the plaintiffs' home. The Complaint charged the water company with certain acts of negligence which individually or collectively caused the destruction mentioned. The water company filed Preliminary Objections in which it simply said that the plaintiffs had failed to set forth a cause of action upon which relief could be granted, and moved for an order dismissing the Complaint. The Court sustained the objections and entered judgment for the defendant. The plaintiffs have appealed.

In their Complaint the plaintiffs enumerated the items of negligence attributed to the defendant. Since the defendant demurred, the averments in the Complaint will be accepted as established fact. The Complaint states that the defendant allowed the water in the crucial hydrants to freeze so that they became useless for fire-fighting emergencies; that it failed to inspect the hydrants, failed to maintain sufficient pressure in the hydrants, failed to replace or repair inoperative valves and, inter alia, failed to notify the plaintiffs or the Pittsburgh Fire Department that the hydrants were inoperative.

In arguing before this Court, the water company asserts that it was not the lack of water which destroyed the plaintiffs' home--it was the fire. This is like saying that a person who starves to death dies not because of lack of food but because of physical debility. The plaintiffs specifically charge in their Complaint that had the defendant supplied water, their home would not have gone up in flames. This is the charge the defendant must answer to and nothing is gained by the elusive debating dialectic that it was the fire and not the lack of the drenching element which caused the loss of which the plaintiffs complain.

In attempted support of its argument that the lack of water was too remote to be a proximate cause for the plaintiffs' losses, the defendant cites the case of Grant v. Erie, 69 Pa. 420, and says

'The basic and fundamental issue before your Honors is what is the proximate cause of plaintiffs' loss, the fire or the failure of water? This precise question was answered by this Honorable Court in the case of Grant v. Erie, 69 Pa. 420, where it was clearly held that the proximate cause of the damage was the fire and the remote cause was the lack of water.'

In that case the municipality of Erie was authorized by the burgess and councils of the borough 'to make and establish a sufficient number of reservoirs to supply water in case of fire.' The reservoirs were erected but were allowed to fall into decay and, as a consequence, properties belonging to the plaintiff were destroyed by fire because there was no water in the reservoirs to extinguish the flames. The appellee here says in its brief that this Court, in the Erie case, said:

'In this case, it was neither the reservoir nor the amount of water in it that caused the fire. It was caused by something else than that, and whether the ultimate loss was caused by the want of water leads us too far into the region of possibility and conjecture to enable anyone to say, with any certainty, that such loss can be traced directly to the want of water.' (Emphasis supplied by appellant's counsel.)

In offering this quotation, appellee's counsel reveals more resourcefulness than discovery because this Court did not make any such statement. The cited not make was taken from the charge of the Trial Court which was not approved by this Court. In fact, this Court said much to the contrary of that alleged by the appellee, namely,

'The purpose of the reservoir being to extinguish fires, and the fire having been shown not to have been extinguished in consequence of the nonperformance of the duty imposed, it would be no answer, perhaps, to say that the proximate cause of the injury was the fire, and the want of water only the remote cause. If it were made the duty of a municipality to station a police officer at a particular corner, to protect the foot-passengers from being run over by passing vehicles, it may be doubted whether it would be an answer to an action, to say that the cause of the injury was the horse and wagon and not the absence of the officer.' (Emphasis supplied here.)

The decision in the Erie case turned on a factor entirely absent in this case, namely, that the municipality was given only a discretionary authority to build the reservoirs and, therefore, no legal duty was imposed on it to build the reservoirs.

In the case of Eagle Hose Co. v. Priceburg Elec. Light Co., 33 Pa.Super. 581, a fire horse, belonging to the plaintiff hose company, was killed when it stepped on an electric wire after an arc lamp, to which the wire was attached, fell to the ground because the lamp had been held in place by a hemp rope which had been consumed by the conflagration the fire company was fighting. The plaintiff contended that in using a rope, instead of a fireproof device, the electric company committed an act of negligence which resulted in the horse's death. The trial court entered a non-suit against the plaintiff, asserting that the proximate cause of the injury was the burning of the rope, due to a casualty which the defendant was not reasonably bound to foresee. The Superior Court reversed, declaring:

'While the burning building may be treated as an inevitable accident so far as the defendant company is concerned, in that they were not in any manner identified with the cause of the fire and had no control over it, it may at least be treated as an intervening agency which brought into dangerous prominence that which a jury might find was a negligent act of the defendant, and so combined with it as to cause the plaintiff's damage. If this should be so determined against the defendant company it will be sufficient ground on which to base a verdict in the plaintiff's favor * * *. The precautions which were reasonably necessary to protect the arc lamp in its place, and whether the company failed to adopt an appliance which was recognized as safer than the one he had had in use, and was well known to be of such a character, and in general use in the community prior to the happening of this accident, was a question for the jury.'

Similarly in the case at bar, the question as to whether the water company used appropriate care in maintaining the water hydrants so they would not freeze or otherwise become unoperable was a question of fact for the jury.

Did the water company, by failing to properly maintain the hydrants, create a perilous condition? Certainly it could never be said that the fire was an unforeseeable event. Unfortunately, fires are always possible, and the purpose of a fire hydrant, like a Minute Man, is to be ready for fires at all times. It would be wholly unrealistic to say that the water company was not to anticipate the likelihood of a fire, in which event its failing to keep the hydrants and their appurtenances in proper repair could result in the very loss which occurred and in the very manner it occurred. Thus, the defendant cannot avoid liability merely by asserting that the fire and not the defendant's negligence was the proximate cause of the plaintiffs' loss. What was said in Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123, applies here:

"'One who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the innocent act of a third party may have contributed to the final result.' And when there are two contributing acts, it is not proximity in time that determines which of them is the proximate cause of the resulting injury'. Mars v. Meadville Telephone Co., 344 Pa. 29, 31 . * * * In determining whether an intervening force is a superseding cause, the Supreme Court in Hendricks v. Pyramid Motor Freight Corp., 328 Pa. 570, 574 , stated: 'The answer to this inquiry depends on whether the (intervening) conduct was so extraordinary as not to have been reasonably foreseeable, or whether it was reasonably to be anticipated.' * * *

"The question of what is the proximate cause of an accident is almost always one of fact for the jury.' Ashby v. Phila[delphia] Electric Co., supra [328 Pa.] 479 ; Helmick v. South Union Twp., 323 Pa. 433, 439 ; Murray v. Pittsburgh Athletic Co., 324 Pa. 486, 493 ; Restatement, Torts, sec. 447.'

The defendant company next contends that it owed no liability to the plaintiffs because it was under no duty to supply them with water. To support this thesis it cites the case of Thompson v. Springfield Water Co., 215 Pa. 275, 64 A. 521, where this court stated that since the municipality there...