Fuchs v. City of St. Louis
| Decision Date | 03 March 1896 |
| Citation | 133 Mo. 168,34 S.W. 508 |
| Parties | FUCHS v. CITY OF ST. LOUIS et al. |
| Court | Missouri Supreme Court |
1. In an action against a city for damages caused by the explosion of gases in a public sewer, it appeared that petroleum which had been allowed to run into the sewer under direction of the chief of the city's fire department could not flow out by reason of the high water in the river at the outlet of the sewer; that it was in the sewer for four days, and generated gases, which could not escape because the manholes were closed; and that the gases were accidentally ignited, causing the explosion. Held, that the question of the city's negligence was for the jury. Sherwood, Burgess, and Robinson, JJ., dissenting. 31 S. W. 115, affirmed.
2. Where oil was allowed to flow into a public sewer, under the direction of the chief of the city's fire department, for the purpose of suppressing a fire at an oil company's works, the oil company is not liable for damages caused by an explosion thereof, it appearing that neither the fire nor the flow of oil was due to its negligence. 31 S. W. 115, affirmed.
In banc. Appeal from St. Louis circuit court; D. D. Fisher, Judge.
Action by Agnes Fuchs against the city of St. Louis and another for damages caused by an explosion of gases in a sewer. There was a judgment for defendants, and plaintiff appeals. Modified in division (31 S. W. 115), and transferred to court in banc. Modified.
Lubke & Muench, for appellant. W. C. Marshall and C. P. Johnson, for respondents.
The foregoing opinion of BARCLAY, J. (31 S. W. 115), handed down in division No. 1, is adopted as the opinion of the court in banc, BRACE, C. J., and GANTT and MACFARLANE, JJ., concurring therein with him; SHERWOOD, BURGESS, and ROBINSON, JJ., dissenting. Accordingly the judgment of the circuit court is affirmed as to the Waters-Pierce Oil Company, and is reversed and remanded for new trial as to the city of St. Louis
Action by plaintiff, the widow of Carl E. Fuchs, deceased, to recover damages for the death of her husband, caused by the explosion of Mill Creek sewer. The petition, after formal and preliminary statements, alleges that the defendant city had built the sewer, and then proceeds to state that a fire broke out on the premises of defendant the Waters-Pierce Oil Company on the 22d of July, 1892, where a large stock of oils was stored by that company; and that such company did cause and permit said oils to escape and run into the above-mentioned sewer, fill the same with oil, and generate gases therein, etc. Having made these allegations, the petition then avers that "under a license from the then owners of said lot [referring to the lot afterwards bought by Carl E. Fuchs in May, 1884] the said sewer was by said city constructed and carried underneath said lot eastwardly towards the said river, and that said sewer was located below the cellar afterwards caused to be built upon said lot by said deceased, Carl E. Fuchs; that when defendant the city of St. Louis obtained said license from said owners it assumed and agreed with the then owners of said lot and their assigns, and became bound, to keep and maintain said sewer in good order, and to care for the said sewer, so that said lot and any improvements which might be put thereon would be free from danger of injury on account of said sewer and the use thereof." The petition then concludes thus: "Plaintiff further alleges that said sewer was provided with openings especially designed to carry off any gases which might arise in said sewer and be liable to combustion and explosion, and that said sewer and the openings thereof aforesaid, on and prior to the said 26th day of July, 1892, were in the sole care and control of defendant the city of St. Louis, its agents and servants, yet the said city, its agents and servants, knowing that said defendant the Waters-Pierce Oil Company had flooded said sewer with oil, neglected to open said vents, and carelessly and negligently failed to take measures and precautions to prevent gases arising and accumulating in said sewer so as to endanger the same; and that between the said 22d and 26th days of July, 1892, gases did arise and accumulate in said sewer in great and very dangerous quantities, and on the date last named, and within six months next before the commencement of this suit, ignited and exploded with great force, throwing open said sewer underneath the property of said Carl E. Fuchs, shattering his said building, and also then and there causing the death of said Carl E. Fuchs," etc. The answer was a general denial by defendant city as well as by defendant company.
The evidence, in substance, so far as necessary to state it, was to this effect: Carl E. Fuchs, deceased, owned the building on the east side of Fourth street, seven or eight doors south of Chouteau avenue, and about four blocks from the river. This section of the city is a valley, and the sewer in question is known as "Mill Creek Sewer." This sewer was formerly a creek, and constituted the natural drainage of a large portion of the city, into which very numerous smaller sewers emptied, and it drained the property in Mill Creek valley from Grand avenue east-wardly, and also drained the City Hall and Four Courts. Fuchs' building was located over this sewer, which was built in 1858 or 1859, in the most solid and substantial manner, the stones composing it being very massive, and it ran through the lot on which the store building of Fuchs was situate in a northwesterly and southeasterly direction, and crossed Fourth street and Broadway, which converged at that point, and were, in consequence of such convergence, some 200 to 300 feet wide at that point. On July 26, 1892, the sewer exploded about 4:25 p. m., and in consequence of which Carl E. Fuchs died on that day. The explosion tore out the front of the store, except the iron pillars; also the rear wall of the entire building, and the floor of the store; and opened the sewer through the whole length of the building, and extended eastwardly between Second and Main streets, where the entire top arch of the sewer was thrown out for a distance of about 400 or 500 feet. The street west of the store was not disturbed, but the sidewalk on the west side of Broadway was torn up, and also the property next to it. There were covers for the sewer in the middle of the street (where Broadway and Fourth street join) opposite the store, and another on the west side of Broadway, about 150 feet from the store. This cover was blown off, — the one in the street west of the store, — an ordinary-sized manhole, three feet in diameter, with a solid cast-iron lid, about three-fourths of an inch thick. After the explosion this lid was found broken in pieces, and the contents of the store, barrels, boxes, bottles, shelving, and woodwork, wood floors, joists, plaster, and wainscoting were in the sewer, through which the water was rushing. There was a substance in the cellar which looked like an oily mass, and had a gaseous smell. The Waters-Pierce Oil Company's place of business was between Gratiot street on the south, Twelfth street on the east, the railroad tracks on the north, and Fourteenth street on the west, and was ten blocks and two or three blocks north of the Fuchs store, and was close to the Mill Creek sewer, where the company had large iron tanks for storing oils, from which they filled sheet-iron wagons for distributing oils to retail dealers in the city, etc. The floor of the cellar of the Fuchs house was composed of a layer of two or three inches of cinders with a cement top, constructed on the arch of the sewer. The sewer was 14 feet wide, 12 feet high, and with walls 20 to 24 inches thick. At the time of the explosion the river was very high, and filled the cellars and first floors of the buildings on the levee. A fire occurred at the defendant company's works on July 22d, four days prior to the explosion. The witness giving the foregoing testimony was Dr. Fuchs, a son of the deceased. On his cross-examination this witness stated: Generally ordinary sewage is dark and greasy-looking. That he could not tell whether any petroleum oil was mixed with the water in the sewer, but that it had an odor like gas; not like ordinary lighting gas, but a greasy smell, like petroleum or gasoline; something like that; though he was not sufficiently versed in chemistry to tell what kind it was. That the smell was not like that emanating from the black liquid which he had seen taken from sewers. That the smell was different from the ordinary gases from the gas works. That the manhole at the intersection of Broadway and Fourth street was about 100 to 150 feet west of the store. That he knew of no manholes in the sewer east of Fourth street. That after the explosion he saw flat cars, which had fallen into the opening of the sewer which was constructed under the property before his father bought it or built on it, and since that time no repairs on the sewer east of Broadway had been necessary. That there was a slight current to the water in the sewer the day of the accident, but the mouth of the sewer was blocked up by the river. That there was only one sewer inlet at the north end of Market at the junction of Fourth and Fifth streets, and one at the southwest corner of Broadway and Chouteau avenue. That the one at the north end of the Market was reconstructed, and it was made of clay pipe, with a goose neck to it, to prevent the escape of gases into the open air. This was done at the instance of the people in the neighborhood, who complained of the gases and odors thus escaping. That the inlet at the corner of Chouteau avenue and Broadway is intended to drain the surface water from the streets.
Follenius, whose marble works were located at 508 and 510 Chouteau avenue, and who had...
To continue reading
Request your trial