Mann Bros. v. City of Henderson

• Decision Date: 29 May 1913
• Citation: 156 S.W. 1063,154 Ky. 154
• Parties: MANN BROS. v. CITY OF HENDERSON.
• Court: Kentucky Court of Appeals

156 S.W. 1063

154 Ky. 154

MANN BROS. v. CITY OF HENDERSON.

Court of Appeals of Kentucky.

May 29, 1913

Appeal from Circuit Court, Henderson County.

Action by Mann Bros. against the City of Henderson. From a judgment for defendant, plaintiff appeals. Affirmed.

Vance &amp Heilbronner, of Henderson, for appellant.

John C Worsham, of Henderson, for appellee.

HOBSON C.J.

Mann Bros. operate a department store at the northeast corner of Second and Main streets in Henderson, Ky. in a large three-story building. The city of Henderson owns and operates its own water-works. The water main runs down Main street on the opposite side of the street from the Mann building, and six or eight feet from the curb line on that side. Mann Bros installed a hydraulic elevator in their store building, the water for which was supplied by tapping the main at a point opposite the building with a four-inch pipe. The city made the connection with the main and brought the pipe to the Mann property line. Mann Bros. there connected with the city pipe and carried the water within the building. The connection between their pipe and the city pipe was by means of a lead joint; that is, one pipe went within the other, and lead was packed in between to close the joint. On the morning of May 24, 1911, about 9 o'clock, a leakage was discovered in the pipe by means of which water was running into the basement of the store, which was used for the storage of much of their stock. When first discovered there was very little water in the basement. The office of the secretary of the water company is in the central part of the city; the superintendent's office is at the waterworks. According to the testimony for the plaintiff, Mann immediately telephoned the secretary, telling him of the leak, and asking him to have the water turned off; and, according to Mann's testimony, he said that he would tell his men as soon as he could, but he could not locate them at the time. Mann also telephoned to a plumber, who came at once, but was unable to locate the cut-off, as he did not know where it had been placed. It was required by ordinance that the cut-off should be placed on the same side of the street as the property and near the curb; but, in case of large pipes like this, it was usual to place the cut-off on the opposite side of the street so that, if the wall fell in a fire, the cut-off could be reached and the large stream of water turned off. The plumber seems not to have known this. The city had put some additional rock on the street, and this rock, or some of it, had collected over the water box. The plumber dug around looking for the water box and threw the dirt which he dug, or part of it, upon it. Finally about 11:30, and when the stream of water had been running into the basement for over two hours, the superintendent at the waterworks learned of the trouble and came at once to the scene. As soon as he had the dirt removed from over the water box he cut off the water, but in the meantime considerable damage had been done to the stock of Mann Bros. in the basement, to recover for which they brought this suit against the city, alleging that they had been damaged to the amount of $531.20.

The city by its answer denied any negligence on its part, and pleaded that the loss was due to the negligence of Mann Bros. The proof for the city was to the effect that the only notice that the secretary got of the trouble was that Mann Bros sent there to borrow a pump which he lent them, and that he was not notified to have the water cut off. The superintendent was at the water-works, and no notice of the trouble reached him until as above stated. While the water box was covered up by a few inches of rock and some dirt, it could easily have been discovered by a person who knew where to look for it, and it was placed where such boxes were regularly placed. The proof for the city also showed that the escape of the water was due to the lead working out of the joint where Mann's pipe joined the city pipe, a joint made by Mann; that, after the elevator was installed, the working of the elevator caused what is called a water hammer, and the hammering of the water caused the pipe to leak at this joint. The superintendent called Mann's attention to it, telling him it would flood the basement if not fixed; that he must put in an air chamber. Mann had an air chamber put in, but it was allowed to get full of water, and therefore the condition...