Piper v. City of Madison

• Decision Date: 05 October 1909
• Parties: PIPER ET AL. v. CITY OF MADISON.
• Court: Wisconsin Supreme Court

140 Wis. 311

122 N.W. 730

PIPER ET AL.

v.CITY OF MADISON.

Supreme Court of Wisconsin.

Oct. 5, 1909.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Charles Piper and others against the City of Madison. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

The city of Madison, being authorized to maintain and operate a system of waterworks, built its system in 1885. About 1890 a water tower was constructed on Washington avenue. It is claimed that this tower was chiefly constructed to equalize the pressure. As originally planned, the connection between the pipes of the waterworks system and the tank in the water tower was controlled by a valve located inside the base of the tower. In time the dampness and the dripping water rusted the bearings, and it became impossible to operate the valve. Attempts to remedy the matter were unsuccessful, and in 1891, upon the advice of an expert hydraulic engineer, the valve at the base of the tower was discontinued, and a new valve to control the water supply to the tank in the tower was placed at the junction of the supply pipe for the tank and the main pipe line at the junction of Pinckney street and Washington avenue about a block from the tower. Plaintiffs conducted a grocery on Washington avenue in a building located between the valve at the junction of Washington avenue and Pinckney street and the water tower, and stored part of their stock of groceries in the basement of this building. About 7:30 in the morning of January 17, 1907, plaintiffs observed that water was flowing into the basement, presumably from a broken water pipe. The officials of the waterworks department were notified, and as rapidly as possible employés cut off the supply of water from the pipes in that section of the city. The valve at the junction of Pinckney street and Washington avenue, controlling the supply of water to the tank in the water tower, was also closed. This work took more than two hours, and did not stop the flow of water into plaintiffs' basement. A small drain pipe from the tower tank was then opened and with the disappearance of the water from the tank the flow of water into plaintiffs' basement ceased. Considerable damage was done to plaintiffs' stock of groceries by the water, and they bring this action to recover for the damage suffered. Subsequent investigation showed that the 10-inch pipe supplying the tank in the water tower had broken. On the trial in the circuit court of the action for the recovery of the damages suffered, the jury were instructed as to the law of negligence, and were informed that if city authorities in charge of the water department acted upon the advice of men skilled in the work in question, and if the city officials in good faith and in reliance upon the advice of such experts in waterworks construction had constructed a waterworks system according to their best judgment, then defects in the construction became mere errors in judgment, and the city would be relieved from liability for any damages resulting therefrom. Under the instructions of the court, the jury found that the defendant was not guilty of any want of ordinary care in failing to keep the valve in the base of the water tower in such condition that it could be used to shut off the water from the tower. The jury also found the amount of the damages sustained by the plaintiffs. The court awarded judgment in favor of the defendant for its costs. This is an appeal from such judgment.Gilbert, Jackson & Ela, for appellants.

John A. Aylward, City Atty. (Aylward, Davies & Olbrich, of counsel), for respondent.

SIEBECKER, J. (after stating the facts as above).

Under legislative authority the city has voluntarily...