Lober v. Kansas City

• Decision Date: 17 July 1934
• Docket Number: No. 31596.,31596.
• Citation: 74 S.W.2d 815
• Parties: LOBER et al. v. KANSAS CITY.
• Court: Missouri Supreme Court

74 S.W.2d 815

LOBER et al. v. KANSAS CITY.

No. 31596.

Supreme Court of Missouri, Division No. 1.

July 17, 1934.

Rehearing Overruled September 18, 1934.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by Robert Lober and another, doing business as the Capitol Printing Company, against Kansas City. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded.

George Kingsley, City Counselor, and Joshua Barbee and John J. Cosgrove, Asst. City Counselors, all of Kansas City, for appellant.

C. W. Prince, James N. Beery, and Hume & Raymond, all of Kansas City, for respondents.

STURGIS, Commissioner.

In this case the plaintiffs sued for the serious injury amounting in large measure to the destruction of their printing plant, stock, and equipment located in the basement of a building on the east side of Delaware street, in Kansas City, by water coming from and discharged by a water plug or fire hydrant located on the west side of that street opposite plaintiffs' printing establishment. The plaintiffs recovered judgment, and defendant has appealed; the amount of the judgment bringing the case to this court. There is no question but that plaintiffs' printing plant and shop, located in a room the floor of which was four or five feet below the level of the sidewalk, was to a large extent destroyed by being flooded by a large stream of water which suddenly and with great force burst forth from this hydrant or water plug, shot across the street, broke the windows of the printing shop, and filled it with water. Nor is there any question but that the defendant city owned, controlled, and operated the waterworks system with which this hydrant was connected and of which it formed a part.

The petition proceeds on the theory of res ipsa loquitur, and, after alleging that defendant city owned and exercised complete control over the installation and maintenance of the waterworks equipment in the public streets of the city and operated same for revenue and profit, and had exclusive control and supervision of the mains and of this hydrant or water plug on the west side of Delaware street opposite plaintiffs' place of business, and of the street itself, then alleged general negligence of the defendant in these general terms: "That on or about the 18th day of July, 1928, the defendant negligently and carelessly caused, allowed and permitted water running through the mains and connections belonging to and controlled by it, to flow and precipitate in large quantities and with great force and violence from the hydrant or water plug located opposite and across the street from plaintiffs' said place of business and premises, into, upon and through the premises occupied by said plaintiffs as aforesaid, submerging their place of business and damaging the furniture, printing, stock, fixtures, etc.," to their damage in the sum of $25,000. The defendant filed a motion to have this petition made more specific and definite so as to allege specific acts of negligence, and also demurred to same on the ground that the petition only charged general negligence on the theory of res ipsa loquitur, which applies "only where there is a presumption of negligence against defendant." This contention being overruled, the defendant answered by a general denial, and then alleges that, "if water was permitted to flow from the fire plug described in plaintiffs' petition that said flow of water was permitted by the employees of the street cleaning department who were then engaged in flushing the streets and sewers and defendant Kansas City is not liable for the negligence, if any, of said employees. Further answering, defendant states that the fire plug mentioned in plaintiffs' petition was installed and maintained for the sole and only purpose of flushing the streets and sewers and for fire protection and for that reason defendant Kansas City is not liable for any defect that might have existed in said plug."

The plaintiffs' evidence went little further than to show the circumstances of the occurrence from which an inference of defendant's negligence might be drawn. The incident happened about midnight when plaintiffs' shop was closed, and neither of them was present, and they knew nothing of the occurrence till the next morning. Persons who happened to be near testified to discovering the stream of water issuing from the hydrant and striking the curb and sidewalk on the other side of the street and breaking the glass window of plaintiffs' shop. This hydrant was in the down-town business district where heavy water pressure, from 75 to 100 pounds, was maintained to protect high buildings in case of fire. The hydrant in question located at the west curb of the street was called by the witnesses a fire hydrant or water plug, and was connected with a large main nearer the center of the street. There were three openings to the hydrant near the top, two for the purpose of attaching fire hose and the third and larger one, some four or five inches in diameter, a little lower down and opening toward the center of the street, and used for flushing the street and filling the sprinklers or flush tanks used by the street department in washing and cleaning the streets. On this occasion the cap of this opening was off and the full stream was flowing with full force. Plaintiffs' print shop was quickly filled with water till it overflowed onto the sidewalk. The only thing indicating specific negligence shown by plaintiffs' evidence was that this hydrant had been leaking to a noticeable extent for the past month or so, but this fact was disputed. It was shown that at this time there was a "flusher" or sprinkling truck on the east side of the street in charge of two men working in the street department of the city, and this sprinkler had just been filled with water from a like hydrant on the east side of the street in front of plaintiffs' shop. When the water burst forth, one of these workmen immediately called for help from the water department, and in from five to ten minutes two men and a truck from that department appeared on the scene and commenced trying to stop the torrent of water pouring from the hydrant. The inside mechanism of the hydrant which was ordinarily opened and closed with a "key" was found to be broken or jammed so that it would not work. There was a cut-off valve in the pipe connecting the hydrant with the water main, but this was in line with the stream of water from the hydrant, which was so strong that the man who tried to reach it was washed away and unable to do so. The workmen then tried to locate the shut-off valves at the corners of the adjacent streets, but for some reason failed in this. Finally the water department truck was backed across the stream of water from the hydrant so as to break its force, and a workman then succeeded in reaching the cut-off valve and closed it. It took more than an hour to get it closed. Plaintiffs make the point that the workmen in charge of the flusher or sprinkling truck, which was on the east side of the street at the time the water first commenced to flow into plaintiffs' shop, could have used that truck in the same way and thereby could at least have interposed it as a barrier across the pathway of the stream of water and broken its force or diverted it from continuing to pour into plaintiffs' print shop, and that defendant was negligent in this respect.

The defendant, responding to the requirement of the doctrine of res ipsa loquitur, in that it had in its exclusive control the instrumentalities causing this disaster, and had at its command superior knowledge as to the cause of the unusual occurrence, proceeded to disclose by its evidence how and why the thing occurred. Its evidence was that on this occasion, in the course of their work in cleaning the city streets, these two workmen with the flusher or sprinkling truck were cleaning Delaware street. They stopped at the hydrant in front of plaintiffs' shop to fill the water tank with water by attaching a hose thereto. While one of the workmen was filling the tank, the other one crossed the street, as was the usual way of doing the work, to open the hydrant on that side and flush that side of the street. This workman removed the cap from the large opening of the hydrant and turned on the water in the usual way by turning the rod or "stem" extending down to the valve by the use of a "key" or wrench provided for that purpose. After letting the water run some five minutes, he started to turn it off by the same means, and, when the water had about quit running, to use his own words: "Well, I had the plug about completely shut off and I gave a kind of hard jerk to shut it off tight and the stem busted, I guess, and the water came running out.

"Q. You mean the cover came out? A. No, the cover was not on yet.

"Q. You had not put the cap back on yet? A. No.

"Q. Just illustrate with your hands how you shut the water off. A. Well, gave it a kind of hard turn like this (indicating).

"Q. Now when you gave this extra twist, as you call it, what happened? A. The stem busted, I guess. The water came running out.

"Q. You mean came out of that opening there and went right across the street? A. Yes, sir.

"Q. Came out with full force, did it? A. I don't know whether it was full force or not. It was a pretty heavy force, sufficient to carry the stream of water clear across the street."

Cross-examination: "Q. It shuts off easily, does it not? A. No, not very easy. It takes a pretty good-sized boy to shut them off.

"Q. And you are a good-sized boy? A. Yes, sir.

"Q. When you were shutting it off now, what happened? Did you succeed in turning it or did it refuse to turn? A. No, it turned completely off, and I guess I gave it a little too much of a jerk on the last and it busted."

This workman further testified that he at once went to a cigar store nearby and telephoned to the water department, which sent a truck and two...