Richmond v. Hood Rubber Products Co.

Decision Date11 March 1937
PartiesCITY OF RICHMOND v. HOOD RUBBER PRODUCTS COMPANY, INCORPORATED.
CourtVirginia Supreme Court

Present, Campbell, C.J., and Hudgins, Gregory, Eggleston and Spratley, JJ.

1. WATER COMPANIES AND WATERWORKS — Municipal Waterworks — Escape of Water from Defective Meter — Doctrine of Res Ipsa Loquitur Not Applicable — Case at Bar. — In the instant case, an action for damages caused by the breaking of a water meter, the evidence showed that the meter was defective, that a gasket had blown out on one side, allowing water to escape and flow through the earth into the basement of plaintiff's building, materially damaging goods stored there.

Held: That the doctrine of res ipsa loquitur had no application.

2. NEGLIGENCE — Res Ipsa Loquitur — Requisites to Justify Application of Doctrine. — To justify the application of the doctrine of res ipsa loquitur requires a showing that the instrumentality was under the exclusive control of the defendant, and in addition it is necessary that the cause of the accident be unexplained or unidentified.

3. JUDICIAL NOTICE — Municipal Waterworks — Manner of Installation of Water Meter — Case at Bar. — In the instant case, an action to recover for damage caused by water escaping from a defective water meter, there was no evidence that the meter was improperly installed. It was placed eighteen inches under the sidewalk, in the ground and in a regular meter box. It is common knowledge that great numbers of water meters are placed under the sidewalk in the ground in cities just as this one was placed. This is common and approved practice.

4. WATER COMPANIES AND WATERWORKS — Municipal Waterworks — Required to Exercise Only Ordinary Care. — Municipalities and water companies in supplying water to their customers are not dealing with a commodity which is dangerous in itself and they are required only to exercise ordinary care.

5. WATER COMPANIES AND WATERWORKS — Municipal Waterworks — Escape of Water from Defective Meter — Law of the CaseCase at Bar. — In the instant case, an action to recover for damage caused by water escaping from a defective water meter, the trial court, without objection from plaintiff, gave an instruction which read, in part: "The test of ordinary care in such a case is the common usage and practice of other like companies or municipalities engaged in a similar business."

Held: That this instruction became the law of the case.

6. WATER COMPANIES AND WATERWORKS — Municipal Waterworks — Escape of Water from Defective Meter — Insufficiency of Evidence to Show Improper Installation or Maintenance — Case at Bar. — In the instant case, an action for damage caused by water escaping from a water meter, an examination of the meter showed that the bolts and washers holding the bottom to the meter had given away and caused the bottom to crack; that the washers had rotted, and the gasket between the bottom and meter had blown out on one side. The meter was of standard and approved make and was tested before installation. There was no evidence that common usage or good practice required inspection after installation.

Held: That the evidence failed to disclose that the meter had not been installed and maintained in accordance with the requirements of common usage and good practice.

7. WATER COMPANIES AND WATERWORKS — Municipal Waterworks — Escape of Water from Defective Meter — Burden of Proof of What Common Usage Required as Standard of Ordinary Care — Case at Bar. — In the instant case, an action to recover for damage caused by water escaping from a defective water meter, the burden was upon plaintiff to prove what common usage required as a standard of ordinary care in the installation and maintenance of the meter and also to prove that the city had failed to measure up to that standard.

8. WATER COMPANIES AND WATERWORKS — Municipal Waterworks — Escape of Water from Defective Meter — Necessity of Proving City's Knowledge of Defect — Case at Bar. — In the instant case, an action to recover for damage caused by water escaping from a defective water meter, it was imperative that plaintiff show that the city had some knowledge of the defective meter.

9. WATER COMPANIES AND WATERWORKS — Municipal Waterworks — Escape of Water from Defective Meter — Amendment of Instruction So as to Charge City with Notice of Latent Defects — Case at Bar. — In the instant case, an action to recover for damage caused by water escaping from a defective water meter, defendant offered an instruction that in order to hold defendant liable it must be shown that it had actual or constructive notice of the defect and that by constructive notice was meant that the defect "had been so open and notorious and continued for such a length of time before the alleged damage" that defendant should have acquired knowledge of it, which instruction the trial court amended by substituting for the quoted phrase the words "had existed and continued for such a length of time before the alleged damage."

Held: Error. The instruction would charge defendant with notice of latent and hidden defects in its water system.

Error to a judgment of the Law and Equity Court of the city of Richmond. Hon. Robert N. Pollard, judge presiding. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

James E. Cannon and Ordway Puller, for the plaintiff in error.

John H. Bocock and McGuire, Riely & Eggleston, for the defendant in error.

GREGORY, J., delivered the opinion of the court.

The Hood Rubber Products Company, Incorporated, instituted an action against the city of Richmond for damages alleged to have been occasioned by the breaking of one of the city's water meters, through which leaked large quantities of water that ran into the basement of the property occupied by it, and materially damaged quantities of leather, rubber goods, thread, etc. The trial in the lower court resulted in a verdict and judgment in favor of the Hood Rubber Products Company, Incorporated, which will be referred to as the company.

The facts in the case are practically uncontradicted. For many years prior to the time of this occurrence, the city of Richmond had been engaged in conducting its own water system and in the sale of water to its consumers. The leak in the meter occurred on the 7th day of June, 1934, at which time the city had approximately 45,000 water meters in use.

In the early part of 1934, the company had leased the premises known as 824 West Broad street for the establishment of a branch office for the conduct of its business of dealing in leather and rubber goods, shoe polish, threads, etc. The company was furnished water service to supply a lavatory and washstand in the building. It was furnished through a main which was located in Broad street. A service pipe was connected with this main and it carried water from the main to the meter which was located about 18 inches below the ground, under the sidewalk and near the curb. After the water passed through the meter it continued through the service pipe under the sidewalk and into the basement of the building where pipe connections to the lavatory and washstand were made.

The floor of the basement of the building was of dirt and the company stored its goods there. The goods were packed upon pieces of timber which were laid upon the floor.

On the morning of June 7th, Mr. J. T. Ellis, Jr., the branch manager for the company, went into the basement and found it dry and in good condition, just as it had been since the time the company began its occupancy of the property. About three o'clock that afternoon, Mr. Ellis went into the basement again and found water running through numerous openings in the front wall of the building into which the service pipe from the meter entered. He also found water of considerable depth standing in the basement. He immediately notified the city water department of this condition and within 10 minutes after the notice had been given, an employee of this department cut the water off at the meter and thereby immediately stopped the flow of the water into the basement. The meter was disconnected from the service pipe and removed and a new meter installed.

An examination of the meter disclosed that two of the bolts and washers holding the bottom to the meter had given away and caused the bottom to crack; that the washers had rotted; the gasket between the bottom and the meter had blown out on one side; and through this opening the water flowed through the earth, through the basement wall and into the basement.

At the conclusion of the evidence of the company and also at the conclusion of all the evidence, counsel for the city moved to strike it on the ground that there was no evidence on which a verdict for the company could be supported. These motions, however, were overruled. This ruling of the trial court was made the basis of one of the assignments of error.

The other assignment involved the correctness of the ruling of the court in refusing the first instruction offered by the city, amending and granting it. The instruction as offered read as follows:

"The Court instructs the jury that in order to hold the defendant liable for a defect in its water meter, it must be shown that the city had actual or constructive notice of the defect which caused the damage and had a reasonable time to repair it or guard against any damage that might reasonably be expected to result therefrom after having such notice; and that by constructive notice is meant that the defect by which the damage is alleged to have been caused, had been so open and notorious and continued for such a length of time before the alleged damage, that the city, by its proper officers, exercising ordinary care, should have acquired knowledge of such defect."

The amendment consisted in striking out this language, "had been so open and notorious and continued for such a length of time before the alleged damage," and...

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