Fuchs v. City of St. Louis
| Decision Date | 28 May 1895 |
| Citation | 31 S.W. 115 |
| Parties | FUCHS v. CITY OF ST. LOUIS et al. |
| Court | Missouri Supreme Court |
Appeal from St. Louis circuit court; D. D. Fisher, Judge.
Action by Agnes Fuchs against the city of St. Louis and another for damages. From a judgment for defendants, plaintiff appeals. Reversed as to the city of St. Louis.
Lubke & Muench, for appellant.
W. C Marshall and C. P. Johnson, for respondents.
This action was brought under the damage act (Rev. St. 1889, c 49, § § 4426, 4427) to recover for the death of Mr. Carl E Fuchs. Plaintiff is his widow, and charges that his death was occasioned by the wrongful act or neglect of the defendants which charge the defendants deny. The defendants are the city of St. Louis and the Waters-Pierce Oil Company. The case came to trial in the circuit court in St. Louis. At the close of the testimony instructions were given to the effect that plaintiff could not recover against either defendant. Plaintiff took a nonsuit, with leave, etc., and having, without result, duly moved to set it aside, brought the case here by appeal, after the customary exceptions preserving her case for review. The plaintiff’s husband was killed by the explosion of a public sewer which was in the possession and control of the city. The question presented by this appeal is whether the facts tend to show a liability for that misfortune, as to either one of the defendants. Mr. Fuchs had for many years owned a building on the east side of Fourth street, between Chouteau avenue and Convent street. In July, 1892, he occupied the lower floor and cellar of this building as a place of business, where he conducted a saloon. The house stood over a public sewer, built there by the city before he acquired the property in 1884. The house was built in that year. The sewer was called the "Mill Creek Sewer." It was a large one, constructed and maintained by the city. It was used to drain an extensive territory, as well as to carry off the surface water and sewage from the public buildings in the central part of the city, including the city hall, the "Four Courts," and the jail. The sewer extended from the west beneath and across Broadway (or Fifth street) and Fourth street, underneath and across Mr. Fuchs’ lot; and thence eastwardly, a distance of about four blocks, to the Mississippi river, is outlet. The sewer was provided with several closely-covered openings or manholes, which were available for ventilating it. Several of these manholes were located along the line of the sewer near the saloon property; one of them a short distance west of it. The sewer was about 14 feet in diameter, had an arched top, and was built chiefly of masonry. July 22, 1892, about noon, a fire broke out on the premises of the Waters-Pierce Oil Company, located some ten blocks west, and two or three blocks north, of the saloon. While the fire was in progress, and the city fire engines were throwing streams of water on the burning buildings, large quantities of oil and water ran from the premises of the oil company, and spread out among the railroad tracks adjoining. Then a gang of laborers, under direction of the chief of the St. Louis fire department, dug a trench among the railroad tracks, and by that means conducted the oil and water into a drain leading to the Mill Creek sewer. This oil was not burning at the time. The men who did this were not on the premises of the oil company, and no officer of that company present was seen or heard to give them any directions concerning the prosecution of the work, nor was it shown that the workmen were in the employ of the oil company. Nor was the sewer inlet into which this oil was conducted on the premises of the oil company. How much oil ran into the sewer does not clearly appear. But the amount was, at least, three or four hundred gallons. Four days after the fire, the explosion occurred, shortly after 4 p. m. The immediate cause was the act of an employee of a shop on the opposite side of the street from the saloon, who went into the cellar in the course of his business, taking a lighted candle. As he approached the drain or sewer inlet, there was a puff of flame, and an explosion, which knocked him off his feet, stunned him, and set fire to his clothes. He remembered nothing more for some time thereafter, but another man near him took up the story at that point, and testified that the big explosion (which demolished part of the saloon) occurred before you could count ten, after the mishap to the man with the candle. The final explosion made a noise like a cannon, as one witness described it. It tore open the top of the sewer for a long distance, and, among other damage, blew out part of the saloon building, and killed the plaintiff’s husband....
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