Stifel v. City of St. Louis

• Decision Date: 21 December 1915
• Docket Number: No. 17583.,17583.
• Citation: 181 S.W. 577
• Parties: STIFEL et al. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

181 S.W. 577

STIFEL et al. v. CITY OF ST. LOUIS.

No. 17583.

Supreme Court of Missouri, Division No. 1.

December 21, 1915.

Rehearing Denied January 4, 1916.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Otto Stifel and others, as trustees, against the City of St. Louis. Judgment for plaintiffs, and defendant appeals. Affirmed.

This action was commenced by plaintiffs to recover damages on account of injuries to their building at the northeast corner of Nineteenth and Branch streets, in the city of St. Louis, Mo., alleged to have been caused by a leaking hydrant or fire plug installed by defendant in the sidewalk, on the south side of plaintiff's premises, between September 20 and 27, 1905, and thereafter maintained by appellant until about the first part of December in said year, when it was removed by appellant and a new one installed by it at the same place.

Plaintiffs' evidence tends to show the following facts: That in the latter part of November, 1905, the walls of said building began to crack, and continued to grow worse, until they were repaired in December, 1905. That many years ago the ground under plaintiffs' building was a deep hollow, which was afterwards filled with dirt, clay, ashes, etc., under the direction of plaintiffs' agent, two or more years before said building was erected on said land in 1903. That no cracks had ever been found in said building from the time it was erected in 1903, to November, 1905. That if the foundation of said building upon the made ground had not been sufficient to sustain its weight, cracks would have appeared in the walls within six months from the time the building was completed. That in order to protect the building on account of its construction over "filled-in" earth, the foundation under said building was made of concrete and was from three to five feet in width. That it was sufficient to sustain a building double the weight of plaintiffs'. That the cracks in said building were caused by water escaping from the fire plug in front of said property. That a stream of water was found escaping from the nozzle of said plug on December 1, 1905, three-quarters of an inch in diameter, although it did not appear upon the surface of the ground or plug. That it had been running a sufficient length of time to soften the dirt around the box of said plug and from thence to the foundation of said building. That when the lid was removed from the plug on December 1, 1905, the box was partially filled with water, and the above stream still flowing from the nozzle of the plug. That the latter was covered with an iron lid, placed in a frame, over the plug, on the sidewalk, and about eight feet from said building. That said lid could be removed by one man, and upon the removal of same it could be readily determined whether the plug was leaking, although it might be necessary to turn off the water, in order to ascertain the cause of the leak. That the average life of a new plug is from seven to ten years. That the plug in controversy was painted black, and this indicated to the sprinkling contractor that he was authorized to use the plug. If it had been painted red, he was not authorized to use it. That for many years prior to 1903, and up to time of trial, Nineteenth street, Branch, and Buchanan streets were open to the public, used by the latter, and were under the direction and control of defendant, as were other streets of said city. That the defendant owned the system of waterworks on Branch street and in front of said property, and permitted sprinkling contractors, and other contractors engaged in paving streets and laying water mains or pipes, to use said fire plugs whenever it became necessary for them to do so. That no actual inspection had ever been made of this plug, by any agent or inspector of defendant, from the time it was installed in September, 1905, until the 1st of December in said year, when it was found leaking as aforesaid. That the rubber valve of the original plug when removed by defendant's employés was found to contain a gravel or stone embedded therein, about the size of the end of a man's thumb. That said valve or rubber was not preserved nor produced at the trial for the inspection of the jury. That plaintiffs sustained damages on account of the alleged negligent acts of defendant in failing to install a proper and sound plug, and in failing to maintain the plug in proper condition, in excess of the amount returned by the jury. That section 2 of article 7 of the charter of defendant provides that the water commissioner shall take charge of the waterworks, and all the appurtenances thereto, and shall assume supervisory control over the operation of same, and enforce the performance of all contracts and work.

At the conclusion of plaintiffs' evidence, defendant interposed a demurrer thereto, which was overruled and an exception duly saved as to such ruling.

Defendant's Evidence. Defendant's evidence tends to establish the following facts: That the ground under plaintiffs' building many years ago was a pond, used for boating and fishing. That it was a deep hollow and filled up about two years or more before the erection of plaintiffs' building with dirt, clay, ashes, tin cans, etc. That the cracks in said building may have been produced by reason of the location of said building on such loose soil, and the cracks augmented by the excessive rains which fell in that vicinity during October, 1905. That during the spring of 1905 defendant bought from a reputable firm 190 fire plugs, for use in said city, which were tested in the usual way and found to be sound and in good condition. That said plugs were used by McMahon under his written contract with defendant for laying water hydrants or pipes along Branch street in September, 1905, and that one of said plugs so tested was the one in front of plaintiffs' property and removed by defendant the first part of December, 1905, when a new one was installed in lieu of same. That the contract which McMahon had with the defendant for laying water hydrants, and installing said fire plug, required him to pay all the expenses therefor, both as to the labor and materials furnished. That the city derives no revenue from sprinkling contractors, and furnishes water to the paving and other contractors using said plugs without any profit. That the fire plug in controversy, as well as the valve therein, were sound and in good condition when installed in 1905. That said valve was simply prevented from performing its proper function by the presence of the gravel or stone which had become embedded therein. That the leaky condition of said valve was a latent defect, which was not known to defendant, and which could not have been known to it without raising said lid and inspecting said plug.

Such other facts as may be necessary will be referred to in the opinion which is to follow.

At the conclusion of all the testimony, defendant again interposed a demurrer to the evidence, which was likewise refused, etc.

Instructions. The court, at the instance of plaintiff, gave to the jury instructions numbered 1 and 2, which were objected to by appellant. At the instance of defendant, the court gave instructions numbered from 3 to 13, both inclusive, and refused instructions B, C, D, E, and F, asked by defendant. The above instructions appear in full in the abstract of record and will be referred to when necessary in the opinion. The jury returned a verdict for plaintiff in the sum of $1,600, and judgment was entered thereon. A motion for new trial was filed in due time, overruled, and the cause appealed to this court.

Instructions 1 and 2 given by the court are as follows:

1. The court instructs the jury that if they find and believe from the evidence that since July 16, 1902, the plaintiffs, as trustees, have been, and that they still are, the owners and in possession of the land and buildings at Nineteenth and Branch streets, referred to in the evidence, and that about the fall of 1905 the defendant, the city of St. Louis, through its officers, pursuant to ordinance, caused water distribution pipes to be laid in Branch street where it abuts the property of the plaintiff, and that such pipes were part of the city's general waterworks system, and that the city caused to be erected upon the sidewalk in Branch street, adjoining the premises above referred to, a water plug in connection with said distributing pipes, and that such water plug was intended for the purpose of permitting the city and contractors under the city to draw water from said pipes at said point, for sprinkling purposes as well as for fire protection purposes, and that the said water plug was covered by the city with an iron cover, that said water distributing pipes and said water plug were installed about the ____ day of September, 1905, that about Thanksgiving Day, 1905, and for a long time prior thereto, said water plug was defective, in this, that the shut-off cock failed to shut off the water and permitted the water to flow therefrom and seep through the adjoining ground, and that the city, through its officers, servants, and agents, failed to remedy such defect, if any, and failed to put in a proper shutoff cock which would properly shut off the water at said plug, although the city, through its officers, servants, and agents, by the exercise of ordinary care, might have known that said shutoff cock was in such defective condition and that the water was pouring from said plug; and if the jury find and believe, from the evidence, that such condition was permitted to exist by the city, through its officers, servants, and agents, for a long time after, by the exercise of ordinary care, they could have discovered such condition, and that in the meantime and in consequence of such neglect on their part the city permitted the water from its waterworks system to flow through such plug and seep through the adjoining ground, and caused the...