Fuchs v. City of St. Louis

CourtUnited States State Supreme Court of Missouri
Writing for the CourtTittman
Citation67 S.W. 610,167 Mo. 620
PartiesFUCHS v. CITY OF ST. LOUIS.
Decision Date19 March 1902
67 S.W. 610
167 Mo. 620
FUCHS
v.
CITY OF ST. LOUIS.
Supreme Court of Missouri.
March 19, 1902.

ACTION AGAINST CITY — EXPLOSION OF GASES IN SEWER — PETROLEUM IN SEWER — EVIDENCE — SUFFICIENCY — WITNESSES — COMPETENCY — APPEAL — DEMURRER TO EVIDENCE — REQUEST FOR VERDICT — LAW OF THE CASE.

1. Though defendant, by introducing testimony in his own behalf, waived his objection to the action of the court in overruling a demurrer to plaintiff's evidence, his request at the close of the case for a peremptory instruction for a verdict raised the sufficiency of the whole evidence to support a verdict for plaintiff.

2. Where, in an action against a city for the death of plaintiff's intestate, caused by the explosion of a public sewer, the evidence fails to support plaintiff's allegation that the city contracted with landowners and their assigns, of whom deceased was one, to keep the sewer in repair and prevent injury to improvements placed on the land, the liability of the city under the contractual relation is eliminated.

3. In an action against a city for the death of plaintiff's intestate, caused by the explosion of a public sewer, resulting from petroleum escaping into the sewer at the time of a fire, with the knowledge of the city, evidence examined, and held insufficient to show that the explosion was due to gases generated from the petroleum in the sewer, and not to other gases generated from decomposing fecal matter, etc.

4. Where, in an action against a city for the death of plaintiff's intestate, caused by the explosion of a public sewer, the evidence tended to show that the explosion was due either to gases generated from petroleum in the sewer, or due to gases generated from fecal matter, etc., and defendant is responsible for the explosion due to the former cause only, plaintiff must fail, in the absence of evidence showing that the explosion was in fact due to the gases generated from the petroleum.

5. In an action against a city for the death of plaintiff's intestate, caused by explosion of a public sewer, alleged to have been caused by gases generated from petroleum in the sewer, plaintiff alleged that there were openings in the sewer especially designed to carry off any gases which might arise in the sewer and be liable to explode. The evidence tended to show that there were certain manholes, intended as a means of ingress and egress for repairing the sewer, and certain inlets to permit surface water flowing into it. The manholes, with one exception, had perforated covers. Held, that the evidence was insufficient to sustain the allegation in the complaint.

6. Since a city is liable for the injuries resulting from its opening the manholes in its public sewer so as to permit the escape of poisonous gases generated there, it is not negligent for failing to open such manholes for the purpose of permitting the escape of gases generated from petroleum in the sewer, so as to prevent their explosion.

7. In an action against a city for the death of plaintiff's intestate caused by the explosion of a public sewer, the evidence showed that there was a constant generation of inflammable gases in sewers, but did not suggest any known method of arresting the process. Held, that the evidence failed to show that defendant was guilty of negligence for failing to take precautions to prevent the generating of gases in the sewer.

8. Where, in an action against a city for the death of plaintiff's intestate caused by the explosion of a public sewer, due to defendant's negligence in failing to prevent the formation of gases in the sewer, and in failing to properly ventilate it, evidence that the removal of the covering of a manhole and using a fan or

[67 S.W. 611]

blower of a certain power would have eliminated the gases was inadmissible, there being no allegation of neglect in failing to use the blower to carry off the gases.

9. A consulting chemist and mining engineer, with some experience in taking care of mines and removing gases therefrom, but who had not seen any practical attempt to extract gases from a sewer, and had no knowledge of experiments of that kind, is not qualified to testify as an expert as to the manner of removing gases from a sewer.

10. In an action against a city for the death of plaintiff's intestate, caused by the explosion of a public sewer, the evidence of the explosion and the consequent injury does not establish a prima facie case of defendant's negligence, the doctrine of res ipsa loquitur being inapplicable.

11. In an action against a city for the death of plaintiff's intestate, caused by the explosion of a public sewer, it appeared that petroleum, which had been allowed to run into the sewer during a fire of an oil company's storage building, to the city's knowledge, could not flow out by reason of the high water in the river at the outlet of the sewer; that it remained in the sewer for four days; that gases were generated from the petroleum, as well as from fecal matter, etc.; that such gases could not escape; and that the gases were accidentally ignited, causing the explosion. Held that, as the explosion was not a probable result, reasonably to be anticipated by the city, plaintiff could not recover.

12. Plaintiff, in an action against a city for the death of plaintiff's intestate, caused by the explosion of a public sewer, appealed from an involuntary nonsuit, and the judgment was reversed, on the ground that she had made out a prima facie case entitling her to a submission of it to the jury. Upon the retrial, defendant offered evidence, instructions were given and refused, and rulings were had on the admissibility of evidence. The evidence on the retrial differed in many respects from the evidence given on the first trial. Held, that the doctrine of res judicata was inapplicable, and therefore the court was not bound by the decision on the first appeal.

Brace, J., dissenting in part.

In banc. Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by Agnes Fuchs against the city of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed.

B. Schnurmacher and Chas. C. Allen, for appellant. Lubke & Muench, for respondent.

TITTMAN, Special Judge.


This suit, which is an action brought by Agnes Fuchs to recover damages for the death of her husband, Carl E. Fuchs, was filed September 16, 1892, in the circuit court of the city of St. Louis. The defendants in the suit as originally brought were the city of St. Louis and the Waters-Pierce Oil Company. The case first came to trial in April, 1893, in which plaintiff was forced to submit to a nonsuit. She appealed to this court, which affirmed the judgment of the lower court as to the Waters-Pierce Oil Company, but reversed the judgment as to the city of St. Louis, and remanded the case for a new trial. The opinion of the court on that appeal will be found in Fuchs v. City of St. Louis, 133 Mo. 168, 31 S. W. 115, 34 S. W. 508, 34 L. R. A. 118. The case was finally tried in the circuit court of St. Louis county, to which it had been taken by change of venue, resulting in a verdict and judgment for plaintiff against the remaining defendant, the city of St. Louis. After an unsuccessful motion for new trial, the city appealed to this court.

The petition alleges that her deceased husband, on or about May 26, 1884, became the owner of a lot of ground lying on the east side of Fourth street, about 139 feet southwardly of Chouteau avenue, and that in the following year he erected on said lot a building, covering the entire width of the lot, and extending back about 70 feet; that said building was of brick, three stories high, with a cellar, the cellar and the first floor being designed for the storing of wines and liquors, and the carrying on of a wine and liquor business; and that upon the completion of said building her husband fitted up and furnished said cellar and first floor with bar fixtures, shelving, etc., and thereafter, and until his death, carried on a wine and liquor business in said premises. The petition further alleges that on the 22d day of July, 1892, the Waters-Pierce Oil Company engaged in the business of buying, storing, and selling oils, had on hand in its premises a large stock of oil, in barrels and other packages, and that on said day a fire occurred in said company's premises, "and that said oil company then and there carelessly and negligently did cause, suffer, and permit the said oils to escape, and to run into the sewer hereinafter mentioned, and to fill up said sewer, and to generate the gases which caused the explosion in and destruction of said sewer on the twenty-sixth day of July, 1892"; the city of St. Louis constructed a main sewer, known as the "Mill Creek Sewer," leading from the center of the city to the Mississippi river, and designed to drain the surface waters falling within the reach of the sewer, and to carry off into the river waters from private dwellings and certain city buildings; that, so far as it was practical to do so, the sewer was constructed beneath the public streets and alleys of the city, and that it thus crossed underneath Fourth street to the east line of said street, where said line intersects the lot of ground purchased by the deceased husband of plaintiff; that, under a license from the then owners of said lot, the city was permitted to construct said sewer underneath the same, and to carry it eastwardly under said lot towards the river, said sewer being located below the cellar thereafter constructed by said deceased; that when the city obtained said license from the owners it agreed with them and their assigns to keep and maintain the sewer in good order, and to care for the same, so that said lot and any improvements which might thereafter be placed thereon would be free from danger of injury on account of said sewer or the use thereof. The petition then alleges "that said sewer was provided with openings specially designed to...

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43 practice notes
  • Rockenstein v. Rogers, No. 28487.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1930
    ...233, 57 L. Ed. 815; Sinay v. Chesebro-Whitman, 140 N.Y. Supp. 1074; Schactele v. Brister, 148 App. Div. (N.Y.) 843; Fusch v. St. Louis, 167 Mo. 620, 57 L.R.A. 136; Carvin v. St. Louis, 181 Mo. 334; Goode v. Coal & Coke Co., 167 Mo. App. 169; Goransson v. Riter-Conley, 186 Mo. 300; Byerly v.......
  • Tayer v. York Ice Mach. Corp., No. 34644.
    • United States
    • United States State Supreme Court of Missouri
    • August 17, 1938
    ...Ry. Co., 157 Mo. 666; Zackwik v. Hanover Fire Ins. Co., 225 S.W. 135; Irwin v. St. L.-S.F. Ry. Co., 30 S.W. (2d) 56; Fuchs v. St. Louis, 167 Mo. 620; Epperson v. Midwest Refining Co., 22 Fed. (2d) 622; Conley v. Portland Gas Lt. Co., 58 Atl. 61; Swengel v. LaSalle County Carbon Coal Co., 18......
  • Tate v. Western Union Telegraph Co., No. 30035.
    • United States
    • Missouri Supreme Court
    • December 1, 1934
    ...Ry. Co., 157 Mo. 666, 57 S.W. 276; Lowe v. Railroad Co., 265 Mo. 587, 178 S.W. 442; Hysell v. Swift, 78 Mo. App. 47; Fuchs v. St. Louis, 167 Mo. 620, 67 S.W. 610; Hohimer v. City Light & Traction Co., 262 S.W. 403, 218 Mo. App. 138; Strack v. Tel. Co., 116 S.W. 526; Railroad Co. v. Gelvin, ......
  • Grindstaff v. Goldberg Structural Steel Co., No. 29332.
    • United States
    • Missouri Supreme Court
    • June 24, 1931
    ...994; Sabol v. Cooperage Co., 313 Mo. 527; Hamilton v. Railroad, 123 Mo. App. 619; Oglesby v. Railroad, 177 Mo. 272; Fuchs v. St. Louis, 167 Mo. 620; Bohn v. Railroad, 106 Mo. 429; Beebe v. Transit Co., 206 Mo. 441; Howard v. Railroad, 173 Mo. 530; Wojtylak v. Coal Co., 188 Mo. 260; Copeland......
  • Request a trial to view additional results
43 cases
  • Rockenstein v. Rogers, No. 28487.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1930
    ...233, 57 L. Ed. 815; Sinay v. Chesebro-Whitman, 140 N.Y. Supp. 1074; Schactele v. Brister, 148 App. Div. (N.Y.) 843; Fusch v. St. Louis, 167 Mo. 620, 57 L.R.A. 136; Carvin v. St. Louis, 181 Mo. 334; Goode v. Coal & Coke Co., 167 Mo. App. 169; Goransson v. Riter-Conley, 186 Mo. 300; Byerly v.......
  • Tayer v. York Ice Mach. Corp., No. 34644.
    • United States
    • United States State Supreme Court of Missouri
    • August 17, 1938
    ...Ry. Co., 157 Mo. 666; Zackwik v. Hanover Fire Ins. Co., 225 S.W. 135; Irwin v. St. L.-S.F. Ry. Co., 30 S.W. (2d) 56; Fuchs v. St. Louis, 167 Mo. 620; Epperson v. Midwest Refining Co., 22 Fed. (2d) 622; Conley v. Portland Gas Lt. Co., 58 Atl. 61; Swengel v. LaSalle County Carbon Coal Co., 18......
  • Tate v. Western Union Telegraph Co., No. 30035.
    • United States
    • Missouri Supreme Court
    • December 1, 1934
    ...Ry. Co., 157 Mo. 666, 57 S.W. 276; Lowe v. Railroad Co., 265 Mo. 587, 178 S.W. 442; Hysell v. Swift, 78 Mo. App. 47; Fuchs v. St. Louis, 167 Mo. 620, 67 S.W. 610; Hohimer v. City Light & Traction Co., 262 S.W. 403, 218 Mo. App. 138; Strack v. Tel. Co., 116 S.W. 526; Railroad Co. v. Gelvin, ......
  • Grindstaff v. Goldberg Structural Steel Co., No. 29332.
    • United States
    • Missouri Supreme Court
    • June 24, 1931
    ...994; Sabol v. Cooperage Co., 313 Mo. 527; Hamilton v. Railroad, 123 Mo. App. 619; Oglesby v. Railroad, 177 Mo. 272; Fuchs v. St. Louis, 167 Mo. 620; Bohn v. Railroad, 106 Mo. 429; Beebe v. Transit Co., 206 Mo. 441; Howard v. Railroad, 173 Mo. 530; Wojtylak v. Coal Co., 188 Mo. 260; Copeland......
  • Request a trial to view additional results

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