Felsway Shoe Corp. v. Louisville Water Co.
| Decision Date | 04 October 1949 |
| Parties | FELSWAY SHOE CORPORATION v. LOUISVILLE WATER CO. |
| Court | Kentucky Court of Appeals |
Rehearing Denied Nov. 22, 1949.
Action by Felsway Shoe Corporation against Louisville Water Company for damage to merchandise caused by water escaping from defendant's main.
The Circuit Court of Jefferson County, Common Pleas Branch, First Division, Roscoe Conkling, J., entered a judgment on a directed verdict in favor of defendant, and plaintiff appealed.
The Court of Appeals, Cammack, J., held that the evidence was sufficient to show that break in water main was due to defendant's negligence so as to require defendant to go forward with its proof, and reversed the judgment.
William Mellor, Louisville, for appellant.
Charles W. Morris, Morris & Garlove, Louisville, for appellee.
The Felsway Shoe Corporation instituted this action to recover damages to merchandise in the basement of its store in the 400 block on Fourth Street caused by water which escaped from one of the Water Company's mains. The appeal is from a judgment on a directed verdict given in favor of the Water Company at the conclusion of the evidence offered for Felsway. We are asked to reverse the judgment on the grounds that: (1) the circumstances of the case were such that the mere break in the main was evidence of negligence which made a prima facie case in favor of Felsway under the res ipsa loquitur doctrine; (2) Felsway actually proved that the break in the main was due to the Water Company's negligence; and (3) the trial court erred in refusing to permit the introduction of evidence of prior breaks and leaks in the same main in the same locality and under the same conditions. Since we have reached the conclusion that grounds (2) and (3) are well founded, we shall confine our consideration of the case to them.
In 1934 the Water Company laid a new 12 inch water main in the 400 block on South Fourth Street. Mr. John T. Schuler, who since prior to 1934 has been Superintendent of Distribution for the Water Company, testified that in the ordinary course of events a main such as the one in question should last more than 100 years without breaks or leaks. The main was at all times under the exclusive control of the Water Company. The break which caused the damage in question occurred around 2:20 a. m. on the morning of May 13, 1946. There was a lengthwise splitting of one of the 18 foot sections of the main. Mr. Schuler said that from his examination of the damaged main there was no indication of an outside force which caused the damage. He said also that a break in a sewer under Fourth Street near the 400 block during the 1937 flood caused the earth to go down under the water main, thereby causing a strain on the main including the section which split in 1946. It was shown also that a strain could cause a water main to break.
Unquestionably the Water Company knew that as a result of the 1937 flood the water main in question was in such a condition that a break might be expected. No steps were taken to jack up the main or to relieve it from strain. As a matter of fact, Felsway sought to show that at least eight other breaks and leaks had occurred in the water main within the 400 block following the 1937 flood and prior to the time of the break in question.
It might be well before discussing the contentions made by Felsway to dispose of the Water Company's contention that negligence was not properly pleaded. The charge of negligence was: 'On or about May 13, 1946, at or about 2:30 A.M because of and as a direct and proximate...
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- Felsway Shoe Corporation v. Louisville Water Co.