Goldsmith v. City of Kennett, 5282.

• Decision Date: 24 December 1934
• Docket Number: No. 5282.,5282.
• Parties: GOLDSMITH v. CITY OF KENNETT.
• Court: Missouri Court of Appeals

78 S.W.2d 146

GOLDSMITH v. CITY OF KENNETT.

No. 5282.

Springfield Court of Appeals. Missouri.

December 24, 1934.

Rehearing Denied February 5, 1935.

Appeal from Circuit Court, Dunklin County; John A. McAnally, Judge.

"Not to be published in State Reports."

Action by W. D. Goldsmith against the City of Kennett, a municipal corporation. Judgment for plaintiff, and defendant appeals.

Reversed.

John T. McKay, Jr., and John T. McKay, both of Kennett, for appellant.

John H. Bradley, of Kennett, for respondent.

ALLEN, Presiding Judge.

This cause was filed in the circuit court of Dunklin county, Mo., on January 7, 1932, and was tried on November 22, 1932, upon an amended petition, which alleged that plaintiff was injured on July 27, 1931, while on the premises of Jack Karsten, in the city of Kennett, Mo., and while engaged in raking the yard of Karsten.

The defendant city owns and operates its municipal sewer and water system, and maintains its water meters on the premises of the various customers. The water meter is placed in a container some twelve inches in diameter and about two feet in length. The container is placed vertically in the ground, and the water meter is placed down in said container, and below the surface. The top of the meter container on the premises where plaintiff was injured was about level with the ground. The water meter container, unless there is some covering over the top, is an open hole some twelve inches in diameter and about two feet in depth.

The plaintiff's contention is that it was the duty of the defendant city to exercise ordinary care to see that these containers are guarded by some covering, and that such container on the premises where plaintiff was injured was unguarded and uncovered.

The petition further alleges that on July 27, 1931, the plaintiff was raking the yard of Jack Karsten; that the Karsten lot faces north on Washington avenue in said city, and that the plaintiff lived in the rear of this lot, across the alley, and that the meter container was in the northwest portion of the yard, about three feet south of the sidewalk running east and west and about twelve feet of the west line; that on said July 27, 1931, plaintiff was raking leaves from the yard, upon which the water meter had been placed and was located, and that the defendant failed to use ordinary care to guard and keep guarded and closed the opening of its water meter container on said lot, and that by reason thereof plaintiff stepped into such open container, injuring his left leg and knee and severely bruising the muscles, tendons, and ligaments thereof.

Plaintiff further alleged that it was feasible to guard said opening, and that defendant's failure to guard its water meter opening as herein alleged, and permitting grass, leaves, and weeds to grow over and about said unguarded opening, was the direct cause of plaintiff's injuries, as herein stated.

The defendant's answer alleged that, if the plaintiff was injured, as charged, the city of Kennett was not liable therefor, for the reason that the plaintiff's injury occurred on the private property of J. W. Karsten, for whom plaintiff was working, and that plaintiff was not performing any service whatever for the city of Kennett, and further alleging that the defendant was not responsible for placing the meter on Karsten's premises or fixing and maintaining the container, which contains the meter, that the meter belonged to defendant, and was merely loaned to the owner of the premises for the purpose of measuring the water he obtained from the city, for which he was paying therefor.

The plaintiff proceeded on the theory that it was the duty of the defendant city to guard or keep covered the meter container.

The answer, in substance, pleaded that defendant owed plaintiff no duty as to the meter container.

The defendant did not submit any instruction on contributory negligence. Therefore the sole question submitted herein is that of the liability, if any, of the city of Kennett.

Section 569 of the ordinances of the city of Kennett, provides as follows:

"Every consumer of water from the city waterworks shall be governed by the following rules and regulations, and it is hereby made the duty of the Superintendent of waterworks to enforce the same."

"Rule One. No person, company or corporation shall be permitted to tap or make any connection with the water mains or any service pipes attached to same without first procuring a permit therefor, in writing, from the superintendent of waterworks, nor until the required deposit for a meter has first been made, and the work shall be done only by competent plumbers, licensed and under bond to the city of Kennett.

"Rule Two. The plumber must do the work in strict accordance with the rules and regulations of the waterworks and ordinances controlling tapping and introduction of water into premises.

"Rule Three. All expenses of tapping and plumbing shall be paid to the plumber by the person, company or corporation for whom the connection is made."

"Rule Six. Consumers shall keep all pipes and fixtures in proper repair, and in no case shall they permit a leak to exist to their knowledge, more than twelve hours without having the same attended to. The superintendent, city marshal, street commissioner or any other officer of the city, shall have authority and it shall be their duty to cut off the water at the service box whenever they discover a leak in any pipe or fixture attached to same, and report same to the superintendent.

"Section 570. The city will provide meters for the consumers of all city water, and the city shall have the power and authority to install such meters for any or all the consumers...