Reed v. Village of Syracuse
| Decision Date | 05 March 1909 |
| Docket Number | 15,465 |
| Citation | 120 N.W. 180,83 Neb. 713 |
| Parties | JOSIAH E. REED, APPELLEE, v. VILLAGE OF SYRACUSE, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Otoe county: PAUL JESSEN, JUDGE. Affirmed.
AFFIRMED.
D. P West and John C. Watson, for appellant.
Pitzer & Hayward, contra.
CALKINS C. DUFFIE, EPPERSON and GOOD, CC., concur.
The village of Syracuse had for some years operated a system of waterworks, and in 1904 began the manufacture of gas for municipal use and for sale to private consumers. The pump for supplying water was installed in a pit in the pumping station, and a large tank in which to store gasoline for the manufacture of gas was buried in the ground outside, but near the pit of the pumping station. The plaintiff was a helper employed by the village water commissioner to, among other things, fire the boiler and manage the engine and pumps while pumping water. August 24, 1904, in the execution of his said duties, he descended into the pit to start the pumps. There was a gas burner placed in this pit to light the same at night and during dark days. The plaintiff detected, as he says, a slight odor of gas, and, thinking the fixture might be leaking, lighted a match to test the same. A violent explosion followed, in which plaintiff was severely burned, suffering serious and permanent injuries to his health, strength and ability to labor. He brought this action, alleging that the explosion was caused from gasoline which had leaked from the storage tank, and, percolating through the earth, penetrated the walls of the pumping pit, as the result of the negligence of the defendant in the installation of said storage tank. There was a verdict for the plaintiff, and from a judgment thereon the defendant appeals.
1. At the close of plaintiff's case the defendant asked the court to direct a verdict on the ground that the undisputed evidence failed to show the defendant guilty of negligence. The storage tank was constructed of 3-16 inch sheet iron or steel, and was 35 feet long and 5 1/2 feet in diameter, and cylindrical in shape. The evidence established that to keep such tanks from straining and consequent leakage at the seams they should be unloaded from the car by means of cradles resting on timbers cut to fit the circumference of the tank; that a foundation should be prepared, either by building piers concave in form to fit the tank, or placing concave iron or wooden saddles upon level piers of masonry; that a clearance space should be left under the pipes running from the tank to prevent the same from being wrenched by the uneven settlement thereof, and that in all cases a test of the tank and pipe work should be made after the installation thereof to detect leakage. None of the above precautions were observed by the defendant in installing the tank in question. It was rolled off the cars upon timbers and into a hole dug in the ground without preparing any foundation for it to rest upon. There were no precautions taken to prevent the wrenching of the connecting pipes by the unequal settlement of the tank, and a test of the work was entirely omitted. Upon examination of the tank after the explosion, it was found to be leaking in several places, especially at the pipe connections, and the earth around the tank was more or less saturated with gasoline. The pump pit was walled with ordinary rubble masonry, plastered on the inside with cement. It was not of a design calculated to keep water out of the pit, and there was more or less seepage of ground water into the pit, there being seven or eight inches of water in the pit at the time of the explosion. There being no other source indicated from which it could have entered, the conclusion is almost irresistible that the gasoline from the leaky tank had seeped through the ground and into the pit in the same manner and perhaps with the water which had come through the walls. These facts were clearly sufficient to justify the court in submitting the question of defendant's negligence to the jury. Villages that lawfully engage in commercial enterprises are liable to the public the same as individuals. Todd v. City of Crete, 79 Neb. 671, 113 N.W. 172.
2. It is argued that the plaintiff's own evidence established contributory negligence on his part, and that for that reason the court should have directed a verdict for the defendant. It is claimed that the act of the plaintiff in lighting the match constituted such...
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