Shelbyville Water & Light Co. v. McDade

• Decision Date: 18 April 1906
• Citation: 92 S.W. 568,122 Ky. 639
• Parties: SHELBYVILLE WATER & LIGHT CO. v. McDADE.
• Court: Kentucky Court of Appeals

92 S.W. 568

122 Ky. 639

SHELBYVILLE WATER & LIGHT CO. v. McDADE.

Court of Appeals of Kentucky.

April 18, 1906

Appeal from Circuit Court, Shelby County.

"To be officially reported."

Action by R. L. McDade against the Shelbyville Water & Light Company. From a judgment for plaintiff, defendant appeals. Reversed.

Willis & Todd, for appellant.

Beard &amp Marshall, for appellee.

HOBSON C.J.

The livery stable of R. L. McDade in Shelbyville was burned on May 11, 1904, and he brought this action against the Shelbyville Water & Light Company to recover for the loss, on the ground that it occurred by reason of the company's failure to have a supply of water in its mains as required by its contract with the city. The material part of the contract is contained in the following sections of the city ordinances:

"Sec 227. Said grantee, its legal representatives, assigns or successors shall test said works on their completion, under the supervision of the said board of council, and when said works shall throw water from three separate hydrants at one time, fifty feet high, through one hundred (100) feet of hose and a one-inch nozzle on the level of Main and Fifth street in said city, and when said test has been made, then the city agrees to accept the water service herein agreed to be supplied, and from the date of completion of said test, if successful, the hydrant rentals herein stipulated shall begin."

"Sec. 236. The city of Shelbyville agrees to use the said fire hydrants only for the extinguishment of fires, except when used as otherwise herein provided for, and to make good to the said grantee, its legal representatives, assigns and successors any injury which may happen to any of said hydrants when used by said city, or any officer or servant or agent of said city, if same is done by the fault of said city, officers, agents or servants, and hereby agrees and promises to pay rent for the said fifty-four hydrants at the rate of $2,500 per annum for the said term of thirteen years and six months, or $2,500 per annum for such part of the said thirteen years and six months, as said waterworks shall be operated under this ordinance, which rental the city of Shelbyville hereby agrees to pay in semiannual installments of $1,250 each on the first days of March and September in each year during said term to said grantee, its legal representatives, assigns and successors; provided, however, that all forfeitures under this ordinance, which may be due said city at the time specified for the payment of any hydrant rental shall be deducted from the amount of such payment.

"Sec. 237. The said grantee, its legal representatives, assigns and successors shall constantly, day and night, except in cases of an unavoidable accident, keep all of said hydrants supplied with water, and at night the arc lights herein named with electricity, for service herein provided for. The city shall have the right to put upon the original mains hereinbefore mentioned, at its own cost and expense any intermediate fire hydrants free of charge for water, during the time of the rental of the said number of hydrants herein mentioned, which said hydrants shall be kept and maintained in repair by said grantee, its legal representatives, assigns and successors, charging the city therefor the actual cost of such repair. The said grantee, its legal representatives, assigns and successors shall constantly keep all hydrants rented of them or used by the city supplied with water, and the arc lights at night supplied with electricity, for service and shall maintain them in effective working order. The chief of the fire department of said city, and in case of his absence, the officer in charge thereof, shall have the charge and control of said hydrants, to be inspected and if upon inspection any of said hydrants are found to be out of working order, he shall forthwith notify the chief officer in charge of the water works, in writing, specifying the hydrant or hydrants out of working order, and said officer at the waterworks shall forthwith repair the same, and if not put in working order within three days after such notice, the rental of such hydrant or hydrants shall be stopped, and the grantee, its legal representatives, assigns and successors shall pay to the city a forfeit of five dollars ($5.00) per week for each, while such hydrant or hydrants remain out of repair after such notice, and ten dollars ($10.00) per week for each arc light that remains out of repair after such notice, but such penalties shall not accrue against hydrants owned by the city."

The proof for the plaintiff on the trial showed that the second story of the livery stable had a large quantity of hay and straw stored in it; that there was a water pipe leading up from the first to the second story, with a place to attach a hose on each floor, and the hose was kept on a reel near by both above and below. The water was turned on by means of a switch, and the evidence is a little confused as to how this worked; that is, whether it could be turned on from the upper floor alone, or whether it had to be first turned on below. When the alarm of fire was given, McDade went up to the second floor and undertook to attach the hose and turn on the water. The testimony for him is to the effect that the fire then was small, and could...