Pennsylvania Railroad Company v. Lincoln Trust Company
| Decision Date | 13 September 1929 |
| Docket Number | 12,793 |
| Parties | PENNSYLVANIA RAILROAD COMPANY ET AL. v. LINCOLN TRUST COMPANY, ADMINISTRATOR |
| Court | Indiana Appellate Court |
Rehearing denied February 19, 1930, Reported at: 91 Ind.App 28 at 55.
From Adams Circuit Court; Jesse C. Sutton, Judge.
Action by the Lincoln Trust Company as administrator of the estate of Herman Bauermeister, deceased, against the Pennsylvania Railroad Company and the city of Fort Wayne. From a judgment for plaintiff, the defendants appealed.
Affirmed.
Leonard Rose & Zollars, Louis F. Crosby and Guy Colerick, for appellants.
Eggeman, Reed & Cleland, Ira M. Snouffer and James P. Murphy, for appellee.
This is an action by the Lincoln Trust Company, administrator of the estate of Herman Bauermeister, against the Pennsylvania Railroad Company and the city of Fort Wayne, to recover damages for the death of said decedent because of the alleged negligence on the part of said defendants in the maintenance of a so-called dual connection or "by-pass" between a system of waterworks of the railroad, maintained by it for its individual use, and the city, in maintaining its system for the purpose of furnishing water to consumers. A demurrer to the complaint was filed by each defendant and overruled. The issues were closed by general denials. Trial by jury resulted in a verdict and judgment against both defendants. The city contends the court erred in overruling its demurrer to the complaint and in overruling its motion for a new trial. The railroad company contends the court erred in overruling its motion for a new trial.
The complaint alleges that the railroad company owned a water system and pumped water from St. Marys River at a point on its right of way in the city, and conveyed the water to a point east of Anthony Boulevard in the city; that the city owned and maintained a water system, through which it carried water to all parts of the city for sale to consumers at a profit, one of its water mains running north and south in Anthony Boulevard and crossing the railroad right of way; that the city gave the railroad the right, which was exercised, to tap into and intersect the water main of the city at or near Anthony Boulevard; that the railroad, after having so connected its water main, conveyed and commingled raw river water with the water in the main of the city; that said connection was maintained from 1903 until December 29, 1923, during which time the railroad used a system of valves on its property, and that, in connection therewith, the railroad maintained a shut-off or gate valve, which from time to time was opened for the purpose of permitting water from the water mains of the city to flow into the water main of the railroad for the use of the latter at its shops and yards; that, immediately north of the shut-off valve, the railroad maintained a check valve; that when the shut-off valve was open and when the pressure in the main of the city was greater than the pressure in the railroad main, the water from the city main entered and flowed into the railroad main, but that at all times when the pressure in the railroad main was equal to or greater than the pressure in the city main, the river water from the railroad main would be and was forced into the city mains; that the water of the river was saturated with foul and filthy matter, common sewage, typhoid and other deadly bacilli; that sewers from a part of the city in which an epidemic of typhoid fever occurred in August and September, 1923, emptied into the river at a point above the railroad pumping station, all of which facts were known by both defendants; that the defendants knew that hundreds of citizens purchased water from the Anthony Boulevard main, and they knew that, if the company maintained a pressure greater than the city, the germ-infected water from the river would be carried into the homes of citizens and would be used by them, if the check valves became out of repair; that the said check valve was not a positive check on the river water, and was dangerous to the life and health of persons using water out of said city main; that persons using city water had no way of knowing or determining whether the water furnished by the city was pure and wholesome, and had to rely upon the city, and assume the water was fit for human consumption; that the valve in question had been in use 21 years, was old, worn, unsafe and unfit for use; that the railroad company, in November, and prior and subsequent thereto, negligently opened and permitted the shut-off valve to be and remain open, and permitted the polluted river water to run into the city main, and negligently carried a pressure in excess of the city pressure. After alleging certain other acts of negligence on the part of the railroad, the complaint further alleges that the city negligently permitted the railroad to open the valve and connection between the two water systems, and negligently permitted the polluted and germ-infected river water to be conducted into the city water mains, and to be carried into the homes of citizens of the city, including plaintiff's decedent; that the city negligently permitted the railroad to use an excessive pressure; that the city neglected to keep the check valve in repair and to require the railroad to keep it in repair, thereby negligently permitting the city water to become germ-infected; that the city negligently failed to make proper inspection to see that the valve was kept in repair, or to require the railroad to keep it in repair, knowing it was out of repair and not water tight, and was unsafe and dangerous to the life and health of consumers of city water; that appellee's decedent, Herman Bauermeister, was a purchaser and consumer of water purchased from the Anthony Boulevard water main, which was carried into his home through connecting mains; that such water was contaminated with typhoid bacilli, which the city knew, and that, by reason of his using such water, appellee's decedent contracted typhoid fever and died from the use of such water.
We agree with counsel for the city that the city is only bound to use reasonable care to see that a reasonably pure and wholesome supply of water is furnished to its patrons, and that, as distributor of a public utility, it is not a guarantor of the purity of the water furnished, nor is it bound to furnish absolutely pure water. And it may be stated as a general rule that there is no duty on the part of a public utility, such as a city, to inspect the devices, apparatus or fixtures of a responsible patron on the patron's property located at a point beyond the meter, which is the point of delivery of the utility. Fickeisen v. Wheeling Electrical Co. (1910), 67 W.Va. 335, 67 S.E. 788, 27 L. R. A. (N. S.) 893; Pressley v. Bloomington, etc., Light Co. (1916), 271 Ill. 622, 111 N.E. 511; Hoffman v. Leavenworth, etc., Power Co. (1914), 91 Kan. 450, 138 P. 632, 50 L. R. A. (N. S.) 574; Minneapolis General Electric Co. v. Cronon (1908), 166 F. 651, 20 L. R. A. (N. S.) 816.
This rule, however, does not apply where the public utility is itself receiving a utility, such as water, through pipes and from a source of supply not owned by the public utility. To illustrate: In the instant case, the city is not being sued because of water which it furnished a patron, and which was delivered by it to the railroad, and which the railroad delivered to one of its employees or patrons, and where the injury or damage was caused by a defect in the water system of the railroad. The injury complained of in this case is alleged to have been caused by the negligence of the city in allowing the typhoid-infected water to enter into its system and then be distributed to a patron. All of the cases cited by appellant city in support of its contention that the court erred in overruling the city's demurrer are cases where the public utility was delivering a utility, such as electric current or water from its own plant to a customer, and where the injury was caused by a defective fixture or appliance owned by the patron, and, over which, the public utility had no control, and for which it was not responsible. The cases cited are not in point, and are of no controlling influence in the instant case. The city, having permitted the railroad company to connect its water main with the water main of the city, was in duty bound to exercise reasonable care to see that no polluted and impure water, dangerous to health, was allowed to enter into its mains through the water main of the railroad. The quantum of care and vigilance necessary to constitute ordinary prudence has relation to the importance of the subject-matter and is commensurate with the duty to be performed. When a city or other public utility assumes that which is practically an exclusive right, i. e., to provide a community with such a prime necessity of life as water, sound public policy requires that the city faithfully perform its duty by furnishing a supply adequate in quantity and wholesome in quality. From the very nature of things, the consumer must rely on the proffered supply. Roscoe v. City of Everett (1925), 136 Wash. 295, 239 P. 831; Aronson v. City of Everett (1925), 136 Wash. 312, 239 P. 1011; Workingman's Sav. Bank & Trust Co. v. City of Pittsburgh (1925), 284 Pa. 248, 131 A. 283; Hamilton v. Madison Water Co. (1917), 116 Me. 157, 100 A. 659; Hayes v. Torrington Water Co. (1914), 88 Conn. 609, 92 A. 406, Ann. Cas. 1918D 853; Thomas', Admr., v. Maysville Gas Co. (1900), 108 Ky. 224, 56 S.W. 153, 53 L. R. A. 147. The court did not err in overruling the demurrer to the complaint.
Each appellant contends that the verdict is not sustained by sufficient evidence; that the court erred in admitting...
To continue reading
Request your trial