Safransky v. City of Helena

• Decision Date: 03 January 1935
• Docket Number: 7333.
• Citation: 39 P.2d 644,98 Mont. 456
• Parties: SAFRANSKY v. CITY OF HELENA.
• Court: Montana Supreme Court

39 P.2d 644

98 Mont. 456

SAFRANSKY v. CITY OF HELENA.

No. 7333.

Supreme Court of Montana

January 3, 1935

Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.

Action by Ralph E. Safransky against the City of Helena. From a judgment for plaintiff, defendant appeals.

Affirmed.

Gunn Rasch, Hall & Gunn and John W. Mahan, all of Helena, for appellant.

Wellington D. Rankin and Arthur P. Scher, both of Helena, for respondent.

R. Lee Word, R. Lee Word, Jr., and E. G. Toomey, all of Helena amici curiæ.

PER CURIAM.

The plaintiff, Ralph E. Safransky, brought this action to recover damages which he alleges resulted from drinking contaminated water furnished by the city of Helena, and from which he contracted typhoid fever. His complaint alleges that the city of Helena, a municipal corporation, maintained, managed, owned, and controlled a water supply system from which it furnished water for drinking and domestic purposes on a rental basis, and in the conduct of that business it furnished water to the residence of plaintiff and his wife. That it was the duty of defendant to provide plaintiff with pure, wholesome water for drinking and domestic purposes, and that it further was defendant's duty to prevent sewage, drainage, refuse, or other polluting matter from being discharged into its system and contaminating the waters carried therein.

It is then alleged that, for more than five weeks immediately preceding the time when plaintiff was stricken with typhoid fever, the defendant, its agents, officials, servants, and employees had negligently, carelessly, and recklessly allowed the water to become contaminated with filth and fecal matter, and particularly with coli bacilli, or typhoid fever germs; that defendant had knowledge of this condition, but failed to remedy it, and failed to warn the plaintiff that the water was unfit for human consumption. That plaintiff, without knowledge of this situation, drank the water furnished by defendant for that purpose, and, in consequence thereof, and on or about the 15th day of September, 1929, contracted typhoid fever. That because of the resulting serious illness he was confined in a hospital from September 30, 1929, to November 2, 1929.

It is further alleged that plaintiff had followed the occupation of railroad fireman, but, because of his weakened condition resulting from typhoid fever, he will never be able to again follow that occupation; that he was totally disabled for a period of six months, and that he is now unable to perform any heavy manual labor. Because of these negligent acts and the sickness and disability resulting therefrom, plaintiff claims damages in the sum of $20,000.

For a second cause of action plaintiff alleges that defendant, for a period of more than five years prior to the bringing of this action, had maintained above its water pipe line running along West Main street, and especially at the junction of West Main street with Pacific street, a sewer system and sewer pipe line; and that defendant, and its officials and employees, knew or ought to have known that a break in this sewer line would likely result in sewage percolating through the soil and into the water pipe line, thereby contaminating the water flowing therein with typhoid fever germs; that the defendant, prior to September 15, 1929, negligently failed to have or maintain a reasonable system of inspection for the purpose of discovering leaks in its sewer and water pipes, and, as a consequence, failed to detect a leak in its sewer line, with the result that sewage, contaminated with typhoid fever germs, found its way into the water flowing in the water pipe line below.

For a third cause of action plaintiff alleges that, some time prior to plaintiff's illness, the defendants, its officials and employees, negligently constructed and maintained this sewer line along West Main street, and above the water pipe line, so that sewage was likely to percolate to and enter the water pipe line; that the defendant, its officials and employees, knew or ought to have known that sewage would find its way into the water pipe line, and that for more than five weeks before plaintiff's illness the water in the pipe line did become contaminated with typhoid fever germs from the sewage.

The defendant moved to strike certain portions of each cause of action set out in the complaint. This motion was overruled. It then filed a general and special demurrer to each cause of action. These demurrers were also overruled. The defendant then answered, admitting that it was a municipal corporation, that it owned and operated a water supply system furnishing water for drinking and domestic purposes to the residents and inhabitants of the city of Helena, and that the water furnished by it to the plaintiff was from its Eureka system. All the other allegations of plaintiff's complaint were denied.

Plaintiff's reply, alleging a lack of knowledge or information sufficient to form a belief, denied that the water furnished him by defendant was from the Eureka system.

The cause was tried to a jury. At the close of plaintiff's case, defendant moved for a nonsuit, which motion was denied. At the close of all the testimony in the case, defendant moved for a directed verdict, which motion was also denied. The jury returned a verdict for plaintiff for $1,500, and judgment was entered.

Defendant appeals directly from the judgment, assigning twenty-five specifications of error. Fifteen of these are directed to instructions refused and instructions given. The others are directed to error in overruling motion to strike from the complaint, in overruling the demurrers to the complaint, in overruling the motions for nonsuit and directed verdict, and in the admission of certain exhibits and testimony.

The defendant in its brief questions the correctness of the former decision of this court on two points decided in the case of Campbell v. City of Helena, 92 Mont. 366, 16 P.2d 1. These two points are:

First, do the laws creating a state board of health and subordinate county and city health departments take the control of water systems out of the hands of the city, so as to relieve it of its duty to maintain a pure water supply; and,

Second, does the law require one injured in the manner plaintiff alleges he was injured to give notice to the city as a condition precedent to his maintaining an action for damages?

In the case of Campbell v. City of Helena, supra, both these questions are answered in the negative; and now, after a full and complete investigation of all authorities cited by appellant, we find nothing which would tend in any manner to alter our former decision.

Defendant's first contention is that plaintiff has not proved that defendant was negligent. The evidence shows that the city of Helena furnished water to its users through a number of independent systems. The Eureka system has its source at bedrock, about forty feet below the surface, at the upper end of South Main street. From there it is conveyed in a vitrified tile pipe by gravity to a sump at the corner of Park and Wall streets, where an overflow connects it to the Last Chance Gulch drain. From this point the line continues in cast-iron pipe under pressure, and is carried down to and supplies the Sixth ward of the city. Its pressure is derived originally from the natural head of water in the sump, and it is gradually augmented by a continuing downgrade flow from the sump to the Sixth ward. In 1929, its flow would vary, depending on the season of the year, from 400,000 to 900,000 gallons a day.

Dr. J. H. Crouch, epidemiologist of the state board of health, testified to the number of cases of typhoid fever in the city of Helena in recent years as follows: 1922, none; 1923, three; 1924, two; 1925, one; 1926, three; 1927, two; 1928, none; 1929, one hundred and eighty cases of residents of Helena, and thirty-one cases of people residing elsewhere, but who had recently visited Helena, or a total of two hundred eleven cases in all for 1929. He further testified that in 1929 the first case had its onset on July 23, the second on August 7, the third on August 20, and that for a time thereafter the number of cases increased daily.

This witness testified further that the first case traceable by him to the Eureka water was on August 20, and the second on August 21; that a total of nine cases had their onset in August; that in cases infected with the typhoid germ the average period of incubation is about two weeks, but it may be as long as three weeks. During this epidemic in Helena the shortest period of incubation was eight days, and the longest sixteen days. The greatest number of cases reported in one day was ten, reported on September 17. The city began the chlorination of the Eureka water on September 16. Two weeks later, on October 2, only one case was reported. It was the decrease in cases reported following chlorination upon which Dr. Crouch advanced a very decided opinion that the Eureka water was the immediate source of the infection.

On September 14 (or 16, there being some dispute as to date) Mr. H. B. Foote, director of the division of water and sewage of the state board of health, Dr. Crouch and Dr. Arthur Jordan, city health officer, after an inspection of the city water system, called upon the city council and discussed with its members the probability of the typhoid epidemic being traceable to contamination in the city water system. At this meeting, and at 12 o'clock noon, the state board of health recommended the chlorination of the Eureka water, and a chlorination system was installed and was in operation by 5 o'clock p. m. the same day. Chlorination was continued until September 26. Since that date the Eureka water has not...