Green v. Ashland Water Co.

• Citation: 101 Wis. 258,77 N.W. 722
• Parties: GREEN v. ASHLAND WATER CO.
• Decision Date: 22 November 1898
• Court: United States State Supreme Court of Wisconsin

101 Wis. 258

77 N.W. 722

GREEN

v.ASHLAND WATER CO.

Supreme Court of Wisconsin.

Nov. 22, 1898.

Syllabus by the Judge.

1. A waterworks company, operating under a franchise from, and contract with, a municipal corporation, in distributing water for public and domestic use, is not responsible as an implied warrantor of the purity of the water distributed by it.

2. If a waterworks corporation knowingly supply to its customers water contaminated with impurities so as to render it dangerous for domestic use, under such circumstances that its customers are liable to use the water in ignorance of the danger, it owes to such customers the duty of disclosing such danger, and a failure in that regard renders the corporation liable in damages to a customer injured by the use of such water without contributory fault on his part amounting to a want of ordinary care, and the liability may be placed on the ground of either actionable negligence or fraud.

3. In the circumstances stated in the foregoing, whether the liability be placed on the ground of negligence or fraud, knowledge or reasonable means of knowledge, of the condition of the water, on the part of the injured person, will preclude a recovery.

4. In an action for damages, attributed to the negligence of another, evidence of precautions taken to prevent injuries of like character after the happening of the one complained of, is inadmissible, and likewise is evidence as to the situation after the injury, unless preceded by prima facie proof that no change has taken place in the meantime.

5. The admission in evidence of newspaper publications, and proceedings of public bodies, consisting in the main of declarations and statements irrelevant to the issue, and manifestly tending to inflame and prejudice the minds of the jury, though containing some evidence which, standing alone, may be properly received, is prejudicial error.

6. Opinion evidence based on disputed evidentiary facts, not the subject of scientific investigation, is not admissible except in response to properly framed hypothetical questions.

7. Where the only point as to which opinion evidence is directed is properly a matter of scientific investigation, an expert in that line may testify directly thereto from personal investigation.

8. If a water company's source of supply be contaminated with sewage for a long period of time, causing epidemics of typhoid fever annually in a community for several years, and the facts in that regard be there notorious and a matter of common knowledge, the presumption is that members of such community of ordinary intelligence have notice of that situation, and, in the absence of evidence to the contrary that presumption will prevail and preclude a recovery by a person injured by the use of such water, because of his contributory fault.

Appeal from circuit court, Portage county; Charles M. Webb, Judge.

Action by Julia L. Green, administratrix, against the Ashland Water Company. Judgment for plaintiff. Defendant appeals. Reversed.

Action to recover damages for the death of plaintiff's intestate alleged to have been caused by negligence on defendant's part, in that it failed and neglected to extend its intake pipe into Chequamegon Bay from time to time as needed to secure water free from sewage contamination, and suitable for domestic use as required by its contract with the municipality of Ashland. It was claimed that, owing to the breach of duty mentioned, in March, 1894, defendant took from Chequamegon Bay water contaminated with typhoid fever germs and distributed the same to its customers in the city of Ashland, of whom the deceased was one; that without fault on his part, he used such polluted water taken from the service faucet at his residence, for drinking purposes, and was thereby stricken with typhoid fever from which he died. The facts mentioned were properly alleged in the complaint and put in issue by the answer. The facts established conclusively by the admissions in the pleadings or evidence given on the trial were, that the contract under which defendant's waterworks system was constructed and operated was made in 1884; that there was then no sewerage system in Ashland; that the contract required defendant to take its water supply from Chequamegon Bay and to extend the intake pipe in the bay from time to time, as the growth of the city of Ashland might require, to keep the water free from contamination by the sewage from such city; that three years after the waterworks system was installed, there was constructed a sewerage system in Ashland by which the sewage of the city was deposited in the bay, and such system was extended from time to time, and the amount of the sewage thereby, and by the growth of the city, deposited in the bay from year to year down to the time of the occurrence complained of, was so increased that, with pollutions of like character which were drained into the bay from other sources, it was rendered practically impossible to secure therein with certainty, at all seasons of the year, a water supply suitable for domestic use; that as a result of the situation, for several years prior to the spring of 1894, at about the time of the break-up in the spring, there was an epidemic of typhoid fever in Ashland from using the bay water; that as early as 1891, it was generally accepted as true by the people of the city, that the water of the bay was contaminated with typhoid fever germs, and was the cause of the prevalence of typhoid fever, especially in the spring; that the danger of taking the fever from using such water in the spring was notorious in 1894, and for some time prior thereto; that the subject was one generally talked about among the people and was discussed in the city press which was patronized by the intestate; that he had been a resident of the city for several years, was an intelligent working man, and his attention had been specially drawn to the subject of typhoid fever by reason of his wife having been afflicted with it about six months prior to his sickness; that he knew the source of defendant's water supply, and used the water freely without any effort to free it from dangers of sewage contamination. The evidence further shows that deceased was away from home all of the time for about four days prior to his sickness becoming so pronounced as to require him to desist from working, and that prior to such four days he was absent from home during the working time of each day. There was considerable evidence given by experts for the purpose of showing the condition of the bay water, and the probability that the death of the intestate was caused by using it. Numerous exceptions were taken to the rulings on questions propounded to the experts and to other rulings on the admission and rejection of evidence. At the close of plaintiff's case there was a motion for a nonsuit made and denied, and the question raised by such motion was again raised by a motion to direct a verdict in defendant's favor at the close of the evidence on both sides. The jury rendered a special verdict finding among other things, that the deceased died from typhoid fever, caused by drinking water drawn from the faucet in his house; that typhoid fever was epidemic in the city in 1892 and 1893, and that defendant knew, or ought to have known, that the water it furnished was dangerously contaminated with typhoid germs; that it could have procured wholesome water from Chequamegon Bay prior to the sickness of the deceased; that the deceased was without fault in using the water, and that it was publicly and widely stated and believed among the citizens of Ashland, prior to the occurrence complained of, that the typhoid fever epidemics in the city of Ashland were attributable to the water furnished by the defendant. All other issues requisite to plaintiff's recovery were found in her favor, and damages assessed at $5,000. There was a motion for a new trial made after verdict, sufficiently broad to present all questions necessary to be preserved thereby. Proper exceptions were taken to all rulings of the court, adverse to the defendant. Defendant appealed.

Tomkins & Merrill and Lamoreux, Shea & Wright, for appellant.

Cate, Sanborn, Lamoreux & Park, for respondent.

MARSHALL, J. (after stating the facts).

This action was brought, tried, submitted to the jury, and went to judgment, upon the theory, apparently, that a recovery was claimed for the death of plaintiff's intestate on the ground of actionable negligence of defendant. Something is said in the briefs of counsel about the rule, so called, of implied warranty in the sale of provisions for immediate domestic use, as if that rule might apply to the facts. It is not necessary to consider that theory because of the manner in which the case was tried and submitted, as indicated, though it is proper, and deemed advisable as a guide in future proceedings, to discuss it. The doctrine of Sir William Blackstone that there is a warranty of the wholesomeness of provisions sold for domestic use to the buyer, and the vendor is bound to know their quality in that regard at his peril, is controverted by the weight of authority in this country and England. Liability for damages in the circumstance mentioned is supported, but on the ground of deceit, not contract. It would be interesting, and probably constitute a valuable addition to our jurisprudence to have the true nature of that liability definitely decided here. The writer is not familiar with any case where the point has been so presented and decided that the result stands as a binding adjudication on the subject, though there are dicta here and there recognizing the rule as stated by Blackstone as one prevailing in this country generally. Gettey v. Rountree, 2 Pin. 379;Williams v. Slaughter, 3 Wis. 347. There is a strong reason for holding that caveat emptor applies to the purchase of provisions for domestic use the same as to the purchase of other ar...