Rice v. City of St. Louis

• Decision Date: 17 December 1901
• Parties: RICE v. CITY OF ST. LOUIS et al., Appellants
• Court: Missouri Supreme Court

65 S.W. 1002

165 Mo. 636

RICE v. CITY OF ST. LOUIS et al., Appellants

Supreme Court of Missouri, First Division

December 17, 1901

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Reversed as to appellant Sippy; otherwise affirmed.

Frank A. C. MacManus for appellant Sippy.

The court erred in not sustaining defendant Sippy's motion for a new trial. Donoho v. Vulcan Iron Works, 75 Mo 401; Badgley v. St. Louis, 149 Mo. 122. If Sippy is liable in the present action it must arise out of some direct "negligence or carelessness" of his own or that of his agents. His contractual relations with the city, if of any importance, show the absolute right to do just what the "negro driver" of the water cart was doing immediately prior to the occurrence complained of. Had the "fire plug" been "out of use" it would not have been used. Being defective when "turned on" it could not be "turned off" by reason of said defectiveness. Badgley v. St. Louis, supra; Sanderson v. Holland, 39 Mo.App. 233; Chipman v. Palmer, 77 N.Y. 51; Keys v. Gold Co., 53 Cal. 724; Gordon v. Peltzer, 56 Mo.App. 603.

Marion C. Early for respondent.

(1) Where there is any evidence which tends to establish the complaint or defense, from which the jury might reasonably infer the essential fact, the court should not take the case from the jury, and if there is any conflict in the evidence, the case must be submitted to the jury, provided there is sufficient evidence to sustain a verdict. Brown v. Railroad, 99 Mo. 310; Twohey v. Fruin, 96 Mo. 104. (2) Although the facts are not controverted, yet if different minds may reasonably draw therefrom different conclusions, the question is one of fact for the jury and not for the court, as one of law. Railroad v. Stone, 17 Wall. 657. (3) The contractor was the agent and servant of the city, acting under its express authority and control. Both were jointly liable. A city has no power to limit its liability by ordinance or charter, and an action against the city and the contractor jointly was proper. Donoho v. Vulcan Iron Works, 75 Mo. 401; Norton v. City 97 Mo. 537. (4) The liability of a corporation for the negligence of its servants is especially clear when it has received a consideration for the duty to be performed, or when, under permissive authority, it carries on a work from which it derives a profit. Aldrich v. Tripp, 23 Am. Rep. 434; Dillon on Municipal Corps., sec. 982.

VALLIANT, J. Marshall, J., not sitting, having been of counsel.

OPINION

VALLIANT, J.

Action for damages for flooding plaintiff's premises with water.

The suit was begun before a justice of the peace and went by appeal to the circuit court, where there was a verdict of the jury and judgment of court against both defendants for $ 387.50, from which the defendants have taken this appeal.

The facts which the testimony for plaintiff tended to prove are as follows: The defendant, Sippy, was under contract with the city of St. Louis to sprinkle streets and by the terms of the contract was to obtain the necessary water by tapping the fire plugs. For this purpose water tanks on wagons were used. The tank was supplied with a hose, to one end of which was affixed a brass coupling into which were cut threads to receive the screw at the fire plug. When the tank was to be filled, the driver of the wagon would join the brass coupling to the screw at the plug, and then with a key with which he was furnished would open the plug, and by the pressure on the mains the water would be forced through the hose into the tank. When the tank was filled the driver would, with the key, close the plug and then unscrew the connection. The wagon, the tank, the brass coupling at the end of the hose, and the key, were the property of the defendant Sippy, and the driver was his servant. The fire plug and its appurtenances were the property of the defendant, the city of St. Louis.

There were city inspectors of the fire plugs, and under the rules and practice of the water department, when a plug was found to be out of repair or unfit for use it was painted red, which indicated to those whose duties might call them to use it, that it was unsafe and was not to be used, but when it was in good condition it was painted black. The drivers of the sprinkling wagons were informed of this regulation. The fire plug in this case was painted black.

Upon the occasion in question the driver had made the connection and the tank was filled. Then when he attempted to close the plug the key slipped off the knob on which it was designed to fit, and striking against the hose broke loose the coupling and a stream of water spouted into the plaintiff's premises, damaging his goods and the house. The knob on the fire plug was badly worn and the threads on the screw were also badly worn, and those defects caused the catastrophe the defective knob caused the key to slip off, and the defective threads caused the connection to break. The threads in the brass receptacle at the end of the hose were in good...