Yearsley v. City of Pocatello

Citation69 Idaho 500,210 P.2d 795
Decision Date04 October 1949
Docket Number7521
PartiesYEARSLEY et ux. v. CITY OF POCATELLO
CourtUnited States State Supreme Court of Idaho

Rehearing Denied November 7, 1949.

H. B Yearsley and his wife sued the City of Pocatello for damages to their house allegedly caused by leaking water mains. The District Court of the Fifth Judicial District for the County of Bannock, L. E. Glennon, J., rendered judgment for plaintiffs, and defendant appealed.

The Supreme Court, Givens, J., reversed the judgment and held that refusal to give instructions to the effect that the city was not liable in absence of notice, express or implied, of defective conditions required a new trial.

F. E Tydeman, of Pocatello, for appellant.

Actual notice of a defective condition either by reason of knowledge of a break or overflow at the point of damage or by reason of like occurances, is a prerequisite to a finding of negligence. A. J. Brown & Sons, Inc., v. City of Grand Rapids, 265 Mich. 465, 251 N.W. 561-563.

Whether city had notice of break in its water main to require diligence to investigate the condition, held a fact question in a particular case. Riegel & Co. v. City of Philadelphia, 296 Pa. 256, 145 A. 837.

In the instant case there was not one word of evidence that would even suggest that the city had any notice of any leak before the damage was done.

The care required of a city is not greater than that required of an individual. Peccolo v. City of Los Angeles, 8 Cal.App. 532, 66 P.2d 651; Etter v. City of Eugene, 157 Or 68, 69 P.2d 1061.

B. W. Davis, L. F. Racine, Jr., and Mary H. McGlone, of Pocatello, for respondent.

Givens, Justice. Holden, C. J., and Porter, Taylor and Keeton, JJ., concur.

OPINION

Givens, Justice.

Respondents obtained a judgment for $ 4,000 against appellant for damages to their house, alleged to have been caused by water negligently escaping from a leak in appellant's municipally-owned water plant, undermining and causing the foundation and basement walls of the house to crack, sag and sink, and the basement floor to crack.

Respondents charged appellant with failure and neglect in repairing and maintaining its water system. Appellant denied such or any negligence or that any leaks occurred in its system and affirmatively claimed any damaging leaks were in pipes belonging to respondents.

It was suggested during the trial that water may have negligently leaked from pipes in a neighbor's adjoining premises.

There is no dispute about the amount of damages, if appellant is liable.

November 30, 1947, respondents first noticed the floor in their north bedroom had separated from the walls approximately one inch and openings in the walls and plaster showed throughout the house. The next day they called the contractor, who had built the house, and two weeks later he put three temporary cross beams and three sets of supporting pillars under the west wing of the house which was lifted by jacks to approximately the correct level, at which time the respondents concluded the soil in and near the basement was water soaked from leaks in the City's pipe line. Mr. Yearsley put a four-foot stick through a crack under the basement floor about three feet, which upon its withdrawal, had mud sticking to it.

Mrs. Yearsley called the City between December 1 and 6, whereupon three of the City officials came out and looked over the premises and about December 22 or 23, appellant dug a trench, uncovered the City pipes, and replaced short sections adjacent to respondents' premises. The replaced portions of the pipe disclosed rust, corrosion and some holes after they had been removed and were, despite objections by appellant, properly before the jury as exhibits. There was testimony pro and con as to whether the holes in these pipes existed prior to the time the pipes were uncovered; the condition of the ground as to being wet or dry, and whether the digging in and about the pipes in uncovering them caused the incrustation on the outside or the corrosion inside the pipes to break off, and thus occasioned the holes. There were twelve to fourteen inches of frost in the top soil. Some pipe on respondents' and their neighbors' premises were replaced, and there were no holes and no water leaking after December 31.

There was testimony that the soil in that vicinity was of such a nature as to be markedly injurious to the pipe; that the average life of pipe, i. e., free from wear and tear, cracks and leaks in that locality was about twenty years, though some had lasted longer and some had corroded through in as short a time as three years; that it was the practice of the City to wait until a leak developed and its existence ascertained before the pipe was replaced or repaired.

From a plethora of assignments of error, caustically criticised by respondents on that score, definite assignments urging the court erred in refusing to give certain requested instructions, present the only material issues which are decisive of the case.

Dunn v. Boise City, 48 Idaho 550, at page 555, 283 P. 606, considering the liability of a municipality for claimed negligence in handling surface waters, inferentially stated the pertinent law governing liability of a municipality for negligence in connection with latent defects as follows, and thus paraphrased:

First, that the city is not an insurer of condition of its drainage (water) system, but is bound to use ordinary care and skill in constructing and maintaining it.

Second, the city is likewise bound to take notice that timbers (pipes) are liable to decay (deteriorate) from time and use, and must take such measures as ordinary care would dictate to guard against the breaking of its flume (leaking of its water system) because of the decay of the timbers (deterioration of the pipes) used in its construction.

Third, that the city is not liable for damages occasioned by a latent defect in the absence of notice, express or implied, of such defective condition, i.e., the municipality must have had actual notice or the defect actually existed for such a length of time, or under such circumstances that it should have known thereof.

These words should be eliminated from the second paragraph of appellant's requested instruction No. 2: [1] 'Under all conditions and circumstances.'

Appellant's requested instruction No. 8 [2] evidently contains a typographical error and the word 'or' should have been used in the place of the word 'and' in next to the last line thereof.

Instructions Nos. 2 and 8 are not only in accord with the theory of Dunn v. Boise City, supra; Draper v. City of Burley, 53 Idaho 530, 26 P.2d 128; Goodman v. Village of McCammon, 42...

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8 cases
  • C. C. Anderson Stores Co. v. Boise Water Corp.
    • United States
    • Idaho Supreme Court
    • 22 juin 1962
    ...Its liability for such injury depends upon negligence. Dunn v. Boise City, 48 Idaho 550, 283 P. 606; Yearsley v. City of Pocatello, 69 Idaho 500, 210 P.2d 795; 71 Idaho 347, 231 P.2d 743; Vitucci Importing Co. v. City of Seattle, 72 Wash. 192, 130 P. 109; Montgomery Ward & Co. v. Lamberson ......
  • McLean v. City of Spirit Lake
    • United States
    • Idaho Supreme Court
    • 27 juillet 1967
    ...§ 50-162 has never caused dismissal of an action. See Dunn v. City of Boise, 45 Idaho 362, 262 P. 507 (1927); Yearsley v. City of Pocatello, 69 Idaho 500, 210 P.2d 795 (1949); 71 Idaho 347, 231 P.2d 743 (1951); Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282 I recognize that many juris......
  • Grace & Co. v. City of Los Angeles
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 14 avril 1960
    ...186, 134 N.E.2d 438; Stein v. City of Newark, 52 A.2d 66, 25 N.J.Misc. 170 (Cir.Ct. of Essex Co. N.J., 1947); Yearsley v. City of Pocatello, 1949, 69 Idaho 500, 210 P.2d 795. 3 § 53050. As used in this article: "* * * (c) `Local agency' means city, county, or school district. * * *" "§ 5305......
  • Taylor v. Herbold, 10541
    • United States
    • Idaho Supreme Court
    • 8 avril 1971
    ...points sought to be covered by the special interrogatories have been properly submitted by jury instructions. Yearsley v. City of Pocatello, 69 Idaho 500, 210 P.2d 795 (1949); C. C. Anderson Stores Co. v. Boise Water Corp., 84 Idaho 355, 372 P.2d 752 (1962). Defendants also contend that cer......
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