Russell v. City of Grandview, 31765

• Decision Date: 05 November 1951
• Docket Number: No. 31765,31765
• Court: Washington Supreme Court
• Parties: RUSSELL et al. v. CITY OF GRANDVIEW et al. PHILADELPHIA FIRE & MARINE INS. CO. et al. v. CITY OF GRANDVIEW et al.

Page 551

39 Wn.2d 551

236 P.2d 1061

RUSSELL et al. v. CITY OF GRANDVIEW et al.

PHILADELPHIA FIRE & MARINE INS. CO. et al. v. CITY OF GRANDVIEW et al.

No. 31765.

Supreme Court of Washington, Department 1.

Nov. 5, 1951.

Gordon Blechschmidt, Grandview, Velikanje & Velikanje and John S. Moore, Jr., Yakima, for appellants.

Walter V. Swanson, Douglas A. Wilson and Gavin & Robinson, Yakima, for respondents.

GRADY, Justice.

This is an appeal by the city of Grandview and Earle Bugge, its water superintendent, from judgments awarding damages for injuries sustained by the individual respondents and for the recovery of money paid on fire insurance policies by the corporate respondents. The two actions maintained by the respective respondents were consolidated for trial and also for the appeal. Reference to respondents will concern the individuals unless otherwise specified.

On and prior to October 26, 1949, the city of Grandview owned and operated a municipal water plant for the purpose of furnishing a domestic water supply to its inhabitants. The water was pumped from wells into the distribution system. Combustible gas from the wells affected the water pressure. The water superintendent informed respondents that if they would leave the faucets open the gas pressure would be released and the water would soon flow.

On the morning of October 26th, the respondents had no flow of water. Two sink faucets and those serving the bath tub and wash basin were opened. Shortly thereafter, hissing sounds were heard coming from the faucets. While one of respondents was preparing breakfast on the kitchen stove, the gas that had come into the home exploded, injuring respondents, wrecking the dwelling house, and causing fire damage. Reference to other facts will be made in the discussion of assignments of error.

The city urges nonliability on its part upon the theory that in the operation of its water system it was performing a governmental function. The law in this state is to the contrary. Bjork v. City of Tacoma, 76 Wash. 225, 135 P. 1005, 48 L.R.A.,N.S., 331; Aronson v. City of Everett, 136 Wash. 312, 239 P. 1011; Shandrow v. City of Tacoma, 188 Wash. 389, 62 P.2d 1090. We decided in those cases that a city engaged in such an activity acts in its proprietary capacity and is liable for negligence the same as any private corporation engaged in the same business. Cities are limited governmental arms of the state, and when permitted by the state to engage in activities normally performed by private enterprise they to that extent depart from their governmental functions. The fact that some of the water is used in fire protection and in connection with health and sanitation is not material. The negligence of which complaint was made did not arise in the performance of such functions.

Nonliability is also urged upon the ground that appellants did not have notice either that the water system contained methane gas or that the gas therein was of a dangerous or explosive character. The argument is made that even though the city knew that the water contained an element known as hydrogen sulphide, it did not know that methane gas came from the wells or that it was of an explosive character.

The city seeks to draw an analogy between the facts of this case and those involved in cases where injuries were sustained arising out of defects in streets or sidewalks, or obstructions in the way of the normal use thereof, or breaks in pipes carrying gas. Liability in such cases, and those of like import, arises out of negligence in failure to keep the instrumentalities in a proper state of repair. If the defects do not occur by reason of active negligence upon the part of the city, the duty to repair cannot arise until the city has actual or constructive notice of the defects. The city becomes negligent when, after such notice, it fails to make the necessary repairs. If, however, the dangerous condition is caused by agents of the city in the performance of their duties, the rule of liability is not based on notice and failure to repair, but upon the creation of a dangerous condition by the city. Nevala v. City of Ironwood, 232 Mich. 316, 205 N.W. 93, 50 A.L.R. 1189, and annotation appended.

In this case we have a situation where the city negligently permitted an explosive gas to enter its water system. It knew that gas came from one or more of the wells and that such gas was combustible. Complaints had been made of the presence of gas in the pipes to such an extent that it retarded the flow of water. The water superintendent advised respondents to open the faucets so as to relieve the gas pressure. It was the duty of the city to promptly ascertain the nature and character of the gas coming from its wells and to determine whether the presence of such gas was likely to be dangerous to users of the water, and if so to separate the gas from the water before supplying the latter to its patrons. Liability in this case arises out of the active negligence of the city and not by reason of failure to act after having actual or constructive notice of the existence of a danger. These principles find expression in 25 Am.Jur. 729, Highways, § 438; 63 C.J.S., Municipal Corporations, § 825, pages 163, 164; Lasityr v. City of Olympia, 61 Wash. 651, 112 P. 752; Colquhon v. City of Hoquiam, 120 Wash. 391, 207 P. 664. In these cases, it appeared that the cities had given permission to abutting owners to obstruct a street and lay a sidewalk, and it was decided that they were in the same position as to liability as if they had done the acts themse...