Stein v. Louisville Water Co.

• Decision Date: 25 January 1952
• Citation: 249 S.W.2d 750
• Parties: STEIN et al. v. LOUISVILLE WATER CO. NATIONAL SHIRT SHOPS OF KY., Inc. v. LOUISVILLE WATER CO.
• Court: United States State Supreme Court — District of Kentucky

Page 750

249 S.W.2d 750

STEIN et al. v. LOUISVILLE WATER CO.

NATIONAL SHIRT SHOPS OF KY., Inc. v. LOUISVILLE WATER CO.

Court of Appeals of Kentucky.

Jan. 25, 1952.

As Modified on Denial of Rehearing June 13, 1952.

Dodd & Dodd, Louisville, for appellants.

Morris & Garlove, Louisville, for appellee.

STANLEY, Commissioner.

The appeal is from judgments in favor of the defendant, Louisville Water Company, in actions for damages to a building and stock of merchandise caused by the flooding of the property as the result of two breaks in a water main. Suits were filed for damages suffered by a break which occurred April 17, 1949. Before trial, amended petitions set up damages due to a second break which occurred March 24, 1950. This was in a section of the main connected with that which first broke. The property is located on the southeast corner of Fourth and Jefferson Streets in Louisville. The factual conditions are substantially the same as those related in Felsway Shoe Corp. v. Louisville Water Company, 311 Ky. 259, 223 S.W.2d 875. It is the same water main, the premises being in the next block of Fourth Street. These breaks were also lateral splits. The evidence also attributed the cause to subsidence of the ground due to the extraordinary flood in January, 1937, which inundated the street several feet deep. The plaintiffs proved that as a result there was a general sinking of the sandy soil beneath downtown Fourth Street, and two large holes had opened up in this very intersection. There had been eleven breaks or leaks in this main within two blocks, a distance of 800 or 900 feet before these two occurred. It was shown that the sinking of the soil created a strain which made the pipe likely to break in the course of time.

In the Felsway case we held that a peremptory instruction for the water company was error. It was not necessary to decide whether the rule of res ipsa loquitur was applicable, for in our opinion the plaintiff's evidence of negligence was sufficient to authorize a submission of the case. The water company had not availed itself of an opportunity to explain away the prima facie case made against it. In the instant case it did introduce proof in defense, so the question simply became one of whether the plaintiffs established the fact of negligence. The appellee argues they did not so prove negligence for they did not introduce, as did Felsway, the defendant's superintendent of construction, whose testimony in a large measure, disclosed negligence or facts which this court deemed to have been proved. But the facts afforded logical inferences of negligence failure to perform the duty of making the water main reasonably safe.

There is conflict of authority as to whether the rule of res ipsa loquitur may be invoked to establish liability for damages resulting from defects in a water main, or whether negligence must be affirmatively proved. 56 Am.Jur., Water Works, Sec. 38; McQuillin on Municipal Corporations, Sec. 53.103. The doctrine does not prevail at all in some jurisdictions. Where it appears that the condition that resulted in the damage has either been in fact brought to the prior notice of the water company, which is actual notice, or the condition existed for such space of time as would afford the company sufficient opportunity to know of the defect, which is constructive notice, it is deemed sufficient evidence of negligence. McQuillin, Sec. 53.103. The defendant's superintendent and chief engineer testified a water main properly laid and normally used will last a hundred years. The plaintiff was not to be held to the burden of proving a defect in the particular section of the pipe which burst. The defect was in one continuous line in close proximity to the plaintiffs' property. It is a logical inference that the defendant knew the main had become weakened by shifting or undermaining of the soil upon which it rested during the twelve previous years. There was continuity of conditions. We think the evidence sufficiently established a prima facie case as it did in Felsway Shoe Corp. v. Louisville Water Company, supra.

We regard the instructions prejudicially erroneous.

The first part of the instruction upon which liability was predicated reads, 'The Louisville Water Company was not and is not an insurer of the safety of its mains. It was the water company's duty to exercise ordinary care as just defined in the operation of its main in Fourth Street.' It is conceded that the duty was that of ordinary care. Why then should the jury have been told that the defendant was not an insurer of its water main? We suppose the purpose was that the jury might know that the defendant was not liable unless it was guilty of negligence directly causing the accident; i. e., that no recovery could be had for injury by merely showing it was caused by the breaking of the water main. The statement is correct as a matter of abstract law, for it is quite generally held in the case of the leakage or breakage of a water main of a public service company in a street that the principle of the celebrated leading case of Rylands v. Fletcher, L.R. 3 H.L. 330, 6 Mor.Min.Rep. 129, 1 Eng.Rul.Cs. 235, does not apply. The doctrine was therein laid down that a person who, for his own purposes, collects and keeps on his own premises anything likely to do mischief if it escapes is answerable prima facie for all the damage which is the natural consequence. See 38 Am.Jur., Negligence, Sec. 139. It would have been equally as proper to add the statement that the defendant was not liable either for slight negligence.

It is apparent that the academic negative statement of the law had no place in the instruction. Mere abstract statements of law inapplicable to any phase of the case should not be given. Sec. 17, Stanley on Instructions to Juries. The issue in this case was solely that of ordinary negligence. Such an instruction as this emphasizes the limitation of legal liability of the defendant and is calculated to be detrimental to the plaintiff. It tends to confuse the jury as to the standard of care required of the defendant in the given circumstances. It is true, as the appellee points out, that instructions containing such a negative phrase have been approved by this court. But the immediate point was not consciously considered, for the instructions were questioned upon other grounds. It appears most of them were given in cases where the liability of the defendant rested on slight negligence rather than the failure to exercise ordinary care. However, we do not regard the inclusion of the statement as in itself a prejudicial error. But upon another trial it should be omitted.

The instruction made liability of the defendant dependent upon belief by the jury of the existence of four concurring...