State Journal Printing Co. v. City of Madison

• Decision Date: 20 February 1912
• Citation: 148 Wis. 396,134 N.W. 909
• Parties: STATE JOURNAL PRINTING CO. v. CITY OF MADISON.
• Court: Wisconsin Supreme Court

148 Wis. 396

134 N.W. 909

STATE JOURNAL PRINTING CO.

v.CITY OF MADISON.

Supreme Court of Wisconsin.

Feb. 20, 1912.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the State Journal Printing Company against the city of Madison. From an order setting aside a verdict and granting a new trial, defendant appeals. Affirmed.

This is an action for damages resulting from water which escaped from a broken main in the water system of the city of Madison, and inundated the cellar of the plaintiff, inflicting damage by way of destruction of print paper, stereotype molds, etc. The accident happened on the morning of January 17, 1907, and is the same accident involved in the case of Piper v. Madison, 140 Wis. 311, 122 N. W. 730, 25 L. R. A. (N. S.) 239, 133 Am. St. Rep. 1078, the plaintiff here occupying the major part of the same building which the Piper Bros. occupied at the time of the accident.

The important facts appearing on the trial are: That the city of Madison owned and operated its own system of direct pressure waterworks, which were originally constructed in the year 1885. In the year 1890 a tower or standpipe was added to the system, principally for the purpose of equalizing the pressure, but also serving the purpose of a small reservoir. This water tower was located on East Washington avenue, one block northeast from Pinckney street. It is a brick structure, 161 feet in height over all, and contains a cylindrical metal tank 12 feet 4 inches in diameter and 60 feet in height, capable of holding about 54,000 gallons of water, the bottom of which is 72 feet above the ground. This tank is supplied with water by a 10-inch main, hereinafter called the “feed main,” starting from the Pinckney street main and running into the base of the tower, then turning upward and running into the bottom of the tank. As originally constructed in 1890, the supply of water to the tower was controlled by a valve in the feed main located inside the base of the tower just before the main turns upward. It appears, however, that as time went on this valve became very hard to open on account of the sweating of the upright pipe and the dripping of water and the consequent gathering of rust, and that in 1898 (not in 1891, as testified to in the Piper Case) it became impossible to close it, and the water commissioners of the city determined to and did discontinue its use, and placed a valve in the feed main at the northeast line of Pinckney street, 260 feet distant from the tower. This valve is called “valve A” in the case, and its position with reference to the water tower and the water system of the city will be easily seen by reference to the accompanying plat of the immediate surroundings. As will be seen by reference to the plat, the 10-inch feed main was laid somewhat to the southeasterly side of the street, while on the northwesterly side and some 20 feet distant was a 6-inch main, from which service pipes ran to consumers along the street. There were no service pipes connected with the 10-inch main. Its function was simply to feed the standpipe or tower. Washington avenue was and is a business street, with shops and stores on each side, and the plaintiff's building was located, as indicated on the plat, nearly opposite the middle of the feed main, but somewhat nearer to the tower than to Pinckney street, and the service mains from the building ran across the 6-inch main. Valves were also located in the water mains at the various street corners so that, if necessary, the 6-inch service main could be cut off from the balance of the water system, but, in order to make the segregation complete, it required the closing of nine valves. There was in the bottom of the tank a 2-inch waste pipe with a valve which would be opened by hand, and which would discharge the water in the tank into a 6-inch pipe connecting with the sewer system in 3 1/2 or 4 hours. To turn this valve a man simply had to ascend the stairway in the base of the tower to the bottom of the tank.

On the morning in question, at about 7:15 o'clock, water was discovered flowing into the basement of the plaintiff's building through and around the basement windows, and the waterworks officials were at once notified. Employés of the department were immediately sent to remedy the difficulty, if possible, and arrived on the scene at about 7:30 o'clock. After examining the flow of water, the waterworks employés concluded that the escaping water probably came from a broken service pipe, and they first shut off valve A, controlling the feed pipe, and then, as rapidly as possible, closed the remaining eight or nine valves necessary to completely cut off the 6-inch service pipe from the water system. This took more than two hours, largely on account of the fact that it was winter, and hence it required some time to locate and uncover the valves in the streets on account of accumulated snow and ice. The valve in the waste pipe at the bottom of the tank was not opened by any one, because it was supposed that the break was in one of the service pipes, or the 6-inch service main. The closing of the nine valves occupied something more than two hours, and within 15 minutes thereafter, or at about 10 o'clock, the flow of water into the basement ceased. The city employés then seem to have suspected that the break might be in the feed main, and they opened valve A for a few moments, and discovered that the flow commenced again. They then closed it, and proceeded to thaw out the ground over the feed main, and dig down to it. On the third day they found a break in that main opposite the plaintiff's building, and it is not denied that the flood was caused by the escape of the water in the tank through the broken feed main.

The grounds of negligence relied on by the plaintiff were (1) the abandoning of the valve in the base of the water tower, and placing the sole controlling valve at a distance of 260 feet from the tower; and (2) the failure to empty the water tower by opening hydrants and reducing pressure, or by opening the 2-inch waste pipe valve at once.

The following special verdict was returned by the jury:

“(1) Did the defendant fail to exercise ordinary care in abandoning the valve in the base of the water tower and in putting one in place thereof at Pinckney street?” Answer: “No.”

“(2) After defendant knew that water was coming into the plaintiff's building, did the defendant fail to exercise ordinary care in stopping the water from flowing out of the broken pipe into plaintiff's building?” Answer: “No.”

“(3) If you answer ‘Yes' to either or both questions No. 1 or No. 2, was such want of ordinary care the proximate cause of the loss or damage resulting from the flooding of plaintiff's basement and vault?” Answer: “No.”

“(4) What sum will measure the damage done by water from the broken water pipe, wholly excluding from this answer any damage done to the stereotype plates and boxes in the vault?” Answer: “No damage.”

“(5) What sum will measure the damage done to the stereotype plates and the boxes in which they were contained?” Answer: “No damage.”

On this verdict, after overruling motions made by each party for judgment on the verdict, the court set aside the verdict on the ground that it was perverse, and granted a new trial. From this order, the defendant appeals.

The following is the plat referred to in the opinion:

IMAGE

John A. Aylward, City Atty. (Aylward, Davies, Olbrich & Hill, of counsel), for appellant.

Gilbert, Jackson & Ela, for respondent.

WINSLOW, C. J. (after stating the facts as above).

In our judgment the court was entirely justified in setting aside the special verdict as perverse. There was no controversy in the case as to the fact that substantial damage had been suffered by the plaintiff and the trial court practically so instructed the jury, leaving only to them the question of the exact amount thereof. Disregarding the undisputed evidence, as well as the charge of the court, the jury affirmatively found that there was no damage.

[1] Where the answer to one material question of a special verdict plainly shows that the jury made the answer perversely or by reason of passion or prejudice, the court may well set the entire verdict aside, and, indeed, should do so, unless satisfied that the answers to the other questions were not affected by such perversity, passion, or prejudice. Lines v. Milwaukee, 133 N. W. 592. If this were the only question arising upon this appeal, we should have no difficulty in affirming the order granting a new trial, but the defendant contends that there was no evidence of negligence in the case, and hence that no new trial should have been granted even if the verdict were perverse. This contention...