Marshall v. Milton Water Corp., 52-69
| Decision Date | 15 October 1970 |
| Docket Number | No. 52-69,52-69 |
| Parties | Pearl H. and Jean MARSHALL v. MILTON WATER CORPORATION. |
| Court | Vermont Supreme Court |
Coffrin & Pierson, and Richard W. Affolter, Burlington, for plaintiff.
Wick, Dinse & Allen, Burlington, for defendant.
Before SHANGRAW, BARNEY and SMITH, JJ., and LARROW and MARTIN, Superior Judges.
The plaintiffs' barn was destroyed by fire the day after Christmas, 1964. The volunteer fire department of the town of Milton was unable to get water from the closest hydrant after their tanker ran dry, and switched to pumping from the nearby river. This suit was brought to seek to transfer the burden of the plaintiffs' fire loss, on a claim of negligence, to the Milton Water Corporation, a private company. This defendant provided water from its supply for domestic use and made it available through hydrants it installed and maintained, for fire-fighting purposes, on the basis of a long standing unwritten arrangement with the town. At the close of all of the evidence the trial court directed a verdict for the defendant company and the plaintiffs are here on appeal.
The cause of the fire is unknown. The barn was within half a mile of the nearest Milton firehouse and sufficiently inside the village area to have one hydrant about 500 feet from the barn, and another some 1000 feet away. The fire department responded promptly on call with a pumper and a tanker of over 1000 gallons capacity. Water from the tanker was directed against flames on the outside of the front wall of the barn. When those flames were knocked down, the fire inside of the barn loft, where baled hay was stacked, was attacked by at least two firemen with hoses. What fire the men could see was put out, but there was still a lot of smoke. The two men inside the loft were directed to stay near the loft door and the ladder because of the smoke, and because the department had no breathing apparatus to use if rescue was required. The men then began removing the bales of hay. The fire chief described the situation at this point this way, 'There was a lot more fire in the barn, but because of the smoke we couldn't get in.'
A portable pump was discharging the water from the tanker at a rate of about 100 gallons a minute. This meant that the tanker represented roughly eleven minutes of pumping time before it was exhausted. The actual time involved might vary some with intermittent use of the hoses. Connecting the pumper, whose capacity approximated 500 gallons per minute, to the hydrant was a four-minute operation. When the tanker was half empty, that is, had about five and a half minutes of pumping time left, the hydrant connection was attempted. The report came back, 'No water,' so the chief ordered lines laid to the river some 75 feet from the barn and a drafting operation started. This made a more or less unlimited supply of water available and the pumper apparatus was then brought into operation. This required moving hose lines some 800 feet, and the whole process took enough time so that there was a ten or fifteen minute delay in getting water back on the fire.
At the time the tanker ran dry there was a great deal of smoke, but no visual fire. Before the water from the river could be brought to bear, flames broke through the roof on the back side of the barn. Since there was no entrance on this side of the barn, no hoses had been employed here, and the smoke and lack of breathing apparatus prevented getting to it from the front. The play of water on the barn resumed, but the flames spread. The the wall supporting the back part of the barn collapsed and let the roof down onto the burning hay bales. After the fire was finally extinguished, the barn was in such condition as to be pretty much useless. It had functioned as a sale stable, with the first floor finished off, painted and fluorescently lighted.
The problem at the hydrant was not that there was no water. The uncontroverted evidence was that the hydrant was dry because most of the valve mechanism had been removed, but that the opening of a valve adjacent to the hydrant would have released water from the two-inch main servicing it into the hydrant itself. The superintendent to the water company testified that about three weeks before the fire, in checking hydrants, he had found this one frozen. When he thawed it out he found it had a broken guide rod and could not be shut off, once opened. This was what required the closing of the valve in the main servicing the hydrant. A long wrench, required to operate the valve, was left in the hydrant box for a time so that water would be available there...
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...reasons, we conclude that plaintiff cannot overcome the first hurdle of showing but-for causation. See Marshall v. Milton Water Corp., 128 Vt. 609, 612-13, 270 A.2d 162, 164 (1970) (noting that causation cannot be proved by mere "conjecture, surmise, or suspicion"). ¶ 19. Plaintiff's theory......
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