Hawkins v. City of Springfield

Decision Date25 May 1916
Docket NumberNo. 1683.,1683.
Citation194 Mo. App. 151,186 S.W. 576
PartiesHAWKINS et al. v. CITY OF SPRINGFIELD.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by J. L. Hawkins and others against the City of Springfield. Judgment for defendant, and plaintiffs appeal. Affirmed.

Wm. H. Horine and J. T. White, both of Springfield, for appellants. Fred A. Moon and Frank B. Williams, both of Springfield, for respondent.

STURGIS, J.

This is a suit for damages to plaintiffs' property, a stock of furniture, caused by water backing up and overflowing from one of the public sewers of the defendant city and flooding the basement of plaintiffs' store, where such furniture was stored. It is alleged that this sewer became clogged and stopped up so that the water backed up and overflowed, flooding plaintiffs' basement and causing large damage to their furniture; that defendant, after being notified of the obstructed and choked condition of the sewer, failed and neglected to take any steps to remove such obstruction or prevent the escape of water from the sewer into plaintiffs' basement; that said city had ample time to remove such obstruction and prevent the leakage and overflow, but that it negligently failed and refused to do so. These facts were denied, and there was evidence pro and con as to defendant's diligence and efforts to remove the obstruction. The obstruction proved to be an old quilt, but how it got into the sewer is not shown, and no negligence is claimed in this respect. This lodged in the sewer, and by causing trash and débris to collect there gradually formed an obstruction which proved difficult to remove, and same was removed only by taking up the street pavement and digging down to and opening up the obstructed sewer.

Plaintiffs' allegations as to defendant's negligence are quite general, amounting to little more than that defendant negligently failed to remove or take any steps to remove this obstruction and prevent the escape of the water after being notified of the condition and danger to plaintiffs' property. Plaintiffs' evidence is more specific, and they now claim that the evidence shows three ways by which the city could and should have prevented their damage, and that the failure to do so constitutes negligence, to wit: (1) It could probe the sewer and attempt to remove the obstruction in that way; (2) it could pump the water out of the sewer from a manhole above the obstruction into a manhole below it and relieve the pressure, and in this manner the flood was finally relieved, after the damage was done; (3) it could dig at the place where the obstruction was and remove it after digging up the sewer. This was also done, and in that manner the obstruction was finally removed, after it was too late.

It may be conceded that the petition is broad enough to raise an issue as to defendant's negligence in respect to the first and third methods mentioned. As to the second, or pumping, method, the evidence went in without objection that plaintiffs requested and urged the city to use its fire engine, pump, and hose to pump the water from the sewer so as to prevent its overflow to their damage. This is the method that was finally employed, but too late as plaintiffs claim, and by pumping the water from above the obstruction and returning it to the sewer below and same the flood was relieved till the obstruction was finally removed by digging up the sewer. This method, of course, involved the use for this purpose of the engines and apparatus belonging to the fire department and provided by the city for the prevention and extinguishment of fires. The plaintiffs offered to amend their petition during the trial so as to specifically allege negligence in not using in proper time and effectively this means of preventing their injury. The court refused to permit the amendment and instructed the jury to disregard this ground of negligence and all evidence...

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