Hamilton v. Madison Water Co.
| Decision Date | 07 May 1917 |
| Citation | 100 A. 659,116 Me. 157 |
| Parties | HAMILTON v. MADISON WATER CO. |
| Court | Maine Supreme Court |
Report from Supreme Judicial Court, Somerset County, at Law.
Action by William D. Hamilton against the Madison Water Company, on report. Judgment for plaintiff.
Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and MADIGAN, JJ.
W. B. Brown and J. H. Thorne both of Madison, for plaintiff. Butler & Butler, of Skowhegan, and W. R. Pattangall, of Augusta, for defendant.
This is an action on the case to recover damages sustained by the plaintiff by reason of the defendant's alleged negligence in furnishing him with water from which he contracted typhoid fever.
The original authorized source of supply was the Kennebec river, but by amendment (Pr. and Sp. Laws 1913, c. 176) this was extended to Hayden Lake in Madison and Embden pond in Embden. The company was duly organized, entered into a contract with the Madison Village Corporation on August 14, 1891, for the supply of hydrants, drinking fountains, and the flushing of sewers, and constructed its waterworks in 1892.
The general situation is as follows: The village of Madison lies on the east bank of the Kennebec river. A short distance out in the river from the east bank is an island which has been utilized in the development of the water power at that point. A dam has been constructed from the head of this island extending in a southwesterly direction to the west bank of the river, and headgates between the head and the east bank. The island and the east bank form a canal. On this canal, and taking their power from the dam, are the plants of three manufacturing corporations, the Madison Woolen Company, the Indian Spring Woolen Company, and the Great Northern Paper Company.
The intake pipe of the water company leaves the east bank about 150 or 200 feet above the headgates, and as originally constructed extended into the river about 125 feet in a diagonal direction. In 1909 the intake pipe was extended up the river a further distance of about 700 feet so that the intake itself is now at a point about midway of the river, which is between 500 and 000 feet wide at that place.
The pumping station in use is located on the west bank of the canal below the bridge. The distributing system is confined to the village of Madison, which contains about 2,000 inhabitants, and the standpipe is located northeasterly from and outside the village limits.
Briefly stated, the plaintiff's claim is that he contracted typhoid fever in December, 1914, from the water supplied by the defendant, and that the defendant is liable in damages for its negligence in failing to take proper precautions to prevent pollution at the source of supply, in neglecting to purify or sterilize the water before distributing it through its system, and in failing to notify the plaintiff or the public that it was in fact unfit for drinking purposes.
This case is of novel impression in this state, but the principles involved are those that uniformly pertain to actions of negligence.
In order to recover the burden rests on the plaintiff to establish three propositions by a fair preponderance of the evidence, as this case is before us on report and the court is sitting with jury powers on questions of fact. These three propositions are:
First, that the typhoid fever from which the plaintiff suffered was contracted from the use of the water furnished by the defendant.
Second, that the defendant was guilty of negligence in supplying him with such contaminated water.
Third, that the plaintiff exercised due care on his part and was not guilty of contributory negligence.
We will consider these propositions in their order.
This is purely and simply a question of fact. From the very nature of the case it is evident that the proof must be wholly circumstantial. Direct and positive evidence is not available.
That typhoid fever is communicated only by taking the germs into the system either by food or drink is admitted. That the plaintiff was stricken with this disease on December 25, 1914, and that his illness lasted for four months is also conceded. We think the evidence touching the history and surroundings of the case reasonably establishes those further facts. The plaintiff came to Madison on September 22 or 23, 1914. His family, consisting of a wife and two children, came about a month later, which was the last of October. His business was that of a baker, and immediately upon his arrival he entered the bakery of one Legendre and continued in his employ until he was taken sick. At the bakery he drank only from the faucet of the defendant. For the month prior to the arrival of his family, that is, from the last of September until the last of October, he boarded at the restaurant of one Champagne, where spring water was used. When his family arrived he went to housekeeping in a tenement in the Wentworth Block, used there the public water supply exclusively, and continued to do so until he was taken ill. Champagne testified that the plaintiff boarded at his restaurant a part of the time in November and December, but he had no books or memoranda on which to base his recollection, and his testimony as to dates was indefinite and unconvincing. As he was testifying more than a year after the event occurred, and in relation to an event unimportant at the time of its occurrence, his unaided recollection as to the date of its occurrence was naturally vague. On the other hand, the testimony of the plaintiff as to the time is clear and positive, and he is corroborated by the circumstances. After he set up housekeeping he had no occasion to leave his family and board at a restaurant, and that he did not do so is most probable. The plaintiff has therefore sustained the burden of proof that the only source of his drinking water during the months of November and December immediately preceding his illness was the public supply. According to the medical testimony two weeks are required for incubation, one for the development of the disease, and often three or more days pass before the case is diagnosed and reported, so that from three to four weeks are usually consumed after the germ is taken into the system before the case is reported to the authorities. As the plaintiff fell sick on December 25, 1914, and his case was reported on January 4, 1915, it is probable that the germ was taken some time in early December. At that time he was drinking the defendant's water exclusively, both when at home and when at work.
All other possible sources of communication are eliminated by the evidence except the milk supply, which was from Welch's dairy, and this source is urged by the defendant as a possible cause. It is true that milk is a vehicle of typhoid germs, but milk as it leaves the cow is free from them. The contamination is produced later, and, once produced, the germs multiply more rapidly in milk than in water. The origin of the germs, however, is human excrement, and the contamination in either milk or water must come from that source. These are the statements of Dr. Sawyer, the chairman of the Madison board of health.
But no evidence was introduced attacking the quality of the Welch milk or proving any conditions tending to pollute it. The board of health made an investigation of all the milk supplies, but they did not condemn any. The mere fact that a person having typhoid fever had used the Welch milk is of no more consequence than that he had used certain bread, in the absence of evidence tending to show contamination of the milk or the bread. It is post hoc, not propter hoc.
But we will trace the evidence a little further. It appears that upon investigation only two persons beside the plaintiff who used the Welch milk contracted the disease. Of these, one used water from a private well and the other chiefly from the defendant, although occasionally from the artesian well in the yard of the Great Northern Paper Company. So that of the three, two used the town supply.
Two other cases of typhoid fever were reported on the same day as the plaintiff's case. Both of these were schoolboys, and of these neither had used the Welch milk, while both used the town water at home and spring water at the public school. The three cases, therefore, reported on January 4th took their milk supply from three different sources, but their water supply chiefly from a single source, that of the defendant.
The rule as to burden of proof in this class of cases has been well stated as follows:
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