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Rockport V. Rockport Granite Co. 177 | the tenant immediately become the property Mass. 246, 51 L. R. A. 779, 58 N. E. 1017; of the landlord to whose land they are Sturges v. Society for Promotion of Theo- affixed. Burk v. Hollis, 98 Mass. 55; Madilogical Education, 130 Mass. 414, 39 Am. gan v. McCarthy, 108 Mass. 376, 11 Am. Rep. 463; Gorham v. Gross, 125 Mass. 232, Rep. 371; Watriss v. First Nat. Bank, 124 28 Am. Rep. 234. Mass. 571, 26 Am. Rep. 694; McIver v. Estabrook, 134 Mass. 550. As owner of the land and the structures upon it, which were subject to the power of gravitation, and likely to do injury to others if they fell, the defendant's intestate owed certain duties to

If the person who brings a nuisance upon his land is responsible for damages inflicted thereby, is it not equally true that the person who keeps it there after it has been brought on is liable?

Gray v. Boston Gaslight Co. 114 Mass. 149, 19 Am. Rep. 324; Mahoney v. Libbey, 123 Mass. 20, 25 Am. Rep. 6.

The owner of land has been held liable for allowing a dangerous condition of things on his land to continue, either after knowledge of it or after reasonable opportunity to know of it.

adjacent landowners. His duty immediately after the fire was affected by the fact that until then he had had no ownership or control of the upper part of the wall, and that the condition of the whole had been greatly changed by the effect of the fire and the destruction of the connected parts. For dangers growing out of changes which he Laugher v. Pointer, 5 Barn. & C. 547; could not prevent he was not immediately Quarman v. Burnett, 6 Mees. & W. 499; liable. Gray v. Boston Gaslight Co. 114 Rapson v. Cubitt, 9 Mees. & W. 710; Rich Mass. 149, 19 Am. Rep. 324; Mahoney v. v. Basterfield, 4 C. B. 783; Hobbit v. Lon- Libbey, 123 Mass. 20, 25 Am. Rep. 6. The don & N. W. R. Co. 4 Exch. 244; White v. jury were therefore rightly instructed that, Jameson, L. R. 18 Eq. 303; Hilliard v. Rich-before a liability could grow up against the ardson, 3 Gray, 349, 63 Am. Dec. 743; Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 234; Woodman v. Metropolitan R. Co. 149 Mass. 335, 4 L. R. A. 213, 21 N. E. 482; Sessengut v. Posey, 67 Ind. 408, 33 Am. Rep. 98; Anderson v. East, 117 Ind. 126, 2 L. R. A. 712, 19 N. E. 726; Glover v. Mersman, 4 Mo. App. 90; Benson v. Suarez, 43 Barb. 408; Kappes v. Appel, 14 Ill. App. 170; Savannah, F. & W. R. Co. v. Lawton, 75 Ga. 192; Carman v. Steubenville & I. R. Co. 4 Ohio St. 399.

Knowlton, J., delivered the opinion of

the court:

defendant's intestate after the fire, he was entitled to a reasonable time to make necessary investigation and to take such precautions as were required to prevent the wall from doing harm.

We come next to the question, "What was his duty and what was his liability after the lapse of such a reasonable time?" There is a class of cases in which it is held that one who, for his own purposes, brings upon his land noxious substances or other things which have a tendency to escape and do great damage, is bound at his peril to confine them and keep them on his own premises. This rule is rightly applicable only to The defendant's intestate was the owner such unusual and extraordinary uses of of the land and of the first two stories of property in reference to the benefits to be the building which stood upon it before the derived from the use and the dangers or fire. The third story had been conveyed by losses to which others are exposed as should the former owners to Lewis, Noble, and Laf- not be permitted except at the sole risk of lin, trustees, to hold during the life of the the user. The standard of duty established building. By the fire the life of the build- by the courts in these cases is that every ing was destroyed, and the ownership of owner shall refrain from these unwarrantaLewis and others in the third story was ble and extremely dangerous uses of propterminated. Ainsworth V. Mt. Moriah erty, unless he provides safeguards whose Lodge, A. F. & A. M. 172 Mass. 257, 52 N. perfection he guarantees. The case of RyE. 81. The defendant's intestate was left lands v. Fletcher, L. R. 3 H. L. 330, L. R. 1 with his land and the walls and some other Exch. 267, rests upon this principle. In this parts of the first and second stories stand-commonwealth the rule has been applied to manure in a vault very ing upon it, and with the walls of the third the keeping of story, which had previously belonged to the near the well and the cellar of a dwelling Ball v. Nye, trustees, resting on the structure below, and house of an adjacent owner. See also connected with it as part of the realty. All 99 Mass. 582, 97 Am. Dec. 56. rights of other persons in the walls of the Fitzpatrick v. Welch, 174 Mass. 486, 48 L. third story had come to an end. As owner of the land and of the first and second stories of the building, he was owner of everything upon it which was a part of the real estate. Stockwell v. Hunter, 11 Met. 448, 45 Am. Dec. 220; Shawmut Nat. Bank v. Boston, 118 Mass. 125. His position in reference to the walls of the third story was like that of a landlord whose tenant leaves the leased land at the end of the term with structures that he has erected upon it, which have become a part of the realty. These structures which are abandoned by

R. A. 278, 55 N. E. 178. That there are uses of property not forbidden by law to which this doctrine properly may be applied is almost universally acknowledged. This rule is not applicable to the construction and maintenance of the walls of an ordinary building near the land of an adjacent owner. In Quinn v. Crimmings, 171 Mass. 255, 258, 42 L. R. A. 101, 103, 50 N. E. 624, 626, Mr. Justice Holmes shows that, in reference to the danger from the falling of a structure erected on land, "the decision as to what precautions are proper, naturally may vary

with the nature of the particular structhe use. In England this rule, which was ture." He says: "As it is desirable that laid down in Rylands v. Fletcher, L. R. 3 buildings and fences should be put up, the H. L. 330, L. R. 1 Exch. 267, in reference to law of this commonwealth does not throw a reservoir of water, has since been held to the risk of that act, any more than that of be inapplicable where the collection of the other necessary conduct, upon the actor, water is in the natural and ordinary use of or make every owner of a structure insure the land. Fletcher v. Smith, L. R. 2 App. against all that may happen, however little Cas. 781. See Carstairs v. Taylor, L. R. 6 to be foreseen." The principle applicable Exch. 217. So far as we know, there is no to the erection of common buildings whose case in which it has been applied to the erecfall might do damage to persons or proper- tion or maintenance of the walls of an ordity on the adjacent premises holds owners nary building. to a less strict duty. This principle is that, The construction which should be put where a certain lawful use of property will upon the judge's charge in regard to liabilibring to pass wrongful consequences from ty for standing walls is by no means certhe condition in which the property is put, tain. Some broad statements in it might if these are not guarded against, an owner seem to indicate that he was laying down who makes such a use is bound at his peril a rule applicable to the construction and to see that proper care is taken in every maintenance of walls of ordinary buildings particular to prevent the wrong. Woodman so situated that if they fall they will be v. Metropolitan R. Co. 149 Mass. 335, 4 likely to injure the property of the adjaL. R. A. 213, 21 N. E. 482, and cases cited; cent owner. If this were the true meaning, Curtis v. Kiley, 153 Mass. 123, 26 N. E. the instruction would be wrong. But, tak421; Pye v. Faxon, 156 Mass. 471, 31 N. E. ing the charge in its different parts in con640; Harding v. Boston, 163 Mass. 14-19, nection with the facts stated in the bill of 39 N. E. 411, and cases cited; Cabot v. exceptions, we think it was intended to state Kingman. 166 Mass. 403-406, 33 L. R. A. 45, the rule applicable to the kind of wall that 44 N. E. 344; Robbins v. Atkins, 168 Mass. the jury were considering, and not to the 45, 46 N. E. 425; Thompson v. Lowell, L. & walls of buildings generally. As was deH. R. Co. 170 Mass. 577, 40 L. R. A. 345, 49 cided in a previous suit brought by this N. E. 913; Quinn v. Crimmings, 171 Mass. plaintiff, the life of the building had been 255, 256, 42 L. R. A. 101, 50 N. E. 624; destroyed by fire, and the walls which subBoomer v. Wilbur, 176 Mass. 482, 53 L. R. sequently fell were no longer used in supA. 172, 57 N. E. 1004; Sessengut v. Posey, porting a building. Ainsworth v. Mt. Mo67 Ind. 408, 33 Am. Rep. 98; Anderson v. riah Lodge, A. F. & A. M. 172 Mass. 257, Fast, 117 Ind. 126, 2 L. R. A. 712, 19 N. E. 52 N. E. 81. Not only was this the testi726: Chicago v. Robbins, 2 Black, 418-428, mony of the plaintiff's witnesses, but it 17 L. ed. 298-304; Homan v. Stanley, 66 was the substance of the evidence introPa. 464, 5 Am. Rep. 389; New York v. Bai- duced by the defendant. His experts testiley, 2 Denio, 433; Bower v. Peate, L. R. 1 fied that, before any part of the wall could Q. B. Div. 321; Tarry v. Ashton, L. R. 1 Q. safely be built upon, the third story, at B. Div. 314; Gray v. Pullen, 5 Best & S. least, would have to be taken down. This 970-981; Dalton v. Angus, L. R. 6 App. upper part of the wall was that which was Cas. 740, 829. The duty which the law im- most in danger of falling, and the part poses upon an owner of real estate in such whose fall would be most likely to do dama case is to make the conditions safe so far age. To maintain it, or to leave it standing as it can be done by the exercise of ordinary to its full height, could serve no useful purcare on the part of all those engaged in the pose. Its condition in reference to fitness work. He is responsible for the negligence for use was an undisputed fact on the eviof independent contractors as well as for dence. Instead of being a part of a buildthat of his servants. This rule is applica- ing adapted to occupation, it was a part of ble to everyone who builds an ordinary wall the ruins of a building. To maintain such which is liable to do serious injury by fall- a wall after the expiration of a reasonable ing outside of his own premises. It is the time for investigation and for its removal rule on which the decision in Gorham v. would not be a reasonable and proper use Gross, 125 Mass. 232, 28 Am. Rep. 234, of one's property. It was the duty of the rests, and the case is not an authority for defendant not to suffer such a wall to reany liability of a landowner that goes be- main on his land, where its fall would inyond this. See also Gray v. Harris, 107 jure his neighbor, without using such care Mass. 492, 9 Am. Rep. 61; Shrewsbury v. in the maintenance of it as would absoluteSmith, 12 Cush. 177. The uses of property ly prevent injuries, except from causes over governed by this rule are those that bring which he would have no control, such as vis new conditions which involve risks to the major, acts of public enemies, or wrongful persons or property of others, but which are acts of third persons which human foresight ordinary and usual, and, in a sense, natur- could not reasonably be expected to anticial, as incident to the ownership of the land. pate and prevent. This was the rule of law The rule first referred to applies to unusual stated by the judge to the jury. With this and extraordinary uses which are so fraught construction of the charge we think that the with peril to others that the owner should jury were rightly directed to a consideranot be permitted to adopt them for his own tion of the evidence on the principal issue purposes without absolutely protecting his of fact. neighbors from injury or loss by reason of

The jury were instructed to allow inter

est on the amount of damages from the date of the injury. It would have been more accurate to instruct them that in assessing damages of this kind a plaintiff is not to be awarded interest as interest, but that in ascertaining the damage at the date of the verdict the jury should take into account the lapse of time, and put the plaintiff in as good a position in reference to the injury as if the damages directly resulting from it had been paid immediately. Frazer v. Bigelow Carpet Co. 141 Mass. 126, 4 N. E. 620. This principle would authorize the jury to fix the damages at the date of their verdict by adding interest at the legal rate on the amount of damages at the time of the injury, but it would not require them to do this. There might be circumstances such that an allowance less than interest at 6 per cent would compensate for the delay.

| The damages in this case were of a different character from the amount to be awarded for the taking of land under the right of eminent domain, in which the value of the property rights taken should be paid at the time of the taking. See Old Colony R. Co. v. Miller, 125 Mass. 1-3, 28 Am. Rep. 194. But it does not appear that there was anything in this case to take it out of the ordinary rule in regard to compensation for a delay in payment by the allowance of interest. In the absence of anything in the bill of exceptions to show that the defendant was injured by the instruction, we are of opinion that a new trial should not be granted.

The defendant made many requests for instructions, which we do not think it necessary to consider more particularly. Exceptions overruled.

1.

2.

MISSOURI SUPREME COURT.

Agnes FUCHS, Respt.,

v.

City of ST. LOUIS, Appt.

(........Mo.........)

Objection to the overruling of a demurrer to plaintiff's evidence is waived by the introduction of evidence on behalf of defendant.

Preserving an exception to the refusal by the trial court of a peremptory instruction to find for defendant on the whole evidence requires the appellate court to review the evidence as a whole.

3. No recovery can be had against a city for injuries caused by an explosion in a sewer, which is alleged to have resulted from negligently permitting petroleum to be turned into it, where the evidence shows that the explosion might have resulted from another cause, and there is nothing to show that it did not do so.

4. A city is not bound to open vents and manholes leading to its sewers, to permit the escape of gases which are generated therein, as a means of avoiding an explosion, although it may have notice that a quantity of crude petroleum has found its way into the sewer as a result of a fire at the refinery.

5.

Under an allegation of negligence

on the part of a municipality in failing to prevent the formation and accumulation of gases in a sewer, and in failing to open the vents to permit their escape, which resulted in an explosion, evidence is not admissible that the explosion might have been prevented by the use of ventilating appara

tus.

[blocks in formation]

7.

8.

saw any practical attempt made to utilize the method suggested, and never knew of such attempt, and has made no experiments himself.

The mere fact of an explosion of gases in a sewer is not sufficient to charge the municipality with liability for the injury caused thereby.

The explosion of gases in a sewer to the injury of abutting property owners cannot reasonably be anticipated from the fact of the escape of a quantity of crude petroleum into it, so as to charge the municipality with negligence in failing to provide for the escape of the gases generated thereby.

9. A judgment in plaintiff's favor on his appeal from and involuntary nonsult granted at the close of his evidence is not conclusive on an appeal by defendant from a judgment in plaintiff's favor at the close of all the evidence, which differs in many essential particulars from that introduced at the first trial.

(Brace, J., dissents in part.)

(March 19, 1902.)

APPEAL by defendant from a judgment of the Circuit Court for St. Louis County in favor of plaintiff in an action brought to recover damages for the alleged negligent killing of her husband. Reversed.

The facts are stated in the opinion. Messrs. B. Schnurmacher and Charles Claflin Allen, for appellant:

If the proof had shown the presence of a large body of oil, it also showed that there was no practical, feasible method by which the city authorities could have removed it, the mouth of the sewer being submerged by high water in the Mississippi river. also showed that there was And it no practical, feasible measure or precaution for preventing the formation of gases, or for ventilating the sewer. There was therefore nothing practical which the city could do, or which it omitted to do. Therefore it was not guil ty of negligence.

Graney v. St. Louis, I. M. & S. R. Co. 157 Mo. 666, 50 L. R. A. 153, 57 S. W. 276; Shearm. & Redf. Neg. §§ 15, 57; Jones, Neg. of Mun. Corp. §§ 230, 231; Troth v. Nor cross, 111 Mo. 630, 20 S. W. 297; Barney v. Hannibal & St. J. R. Co. 126 Mo. 372, 26 L. R. A. 847, 28 S. W. 1069; Thomas v. Missouri P. R. Co. 109 Mo. 187, 18 S. W. 980. No such explosion in a sewer had ever before occurred. The accident was one that could not be foreseen; it was unexpected, unavoidable, and inevitable, and for its consequences the city is not liable.

Graney v. St. Louis, I. M. & S. R. Co. 157 Mo. 666, 50 L. R. A. 153, 57 S. W. 276; Cobb v. St. Louis & H. R. Co. 149 Mo. 609, 50 S. W. 894; American Brewing Asso. v. Talbot, 141 Mo. 674, 42 S. W. 679; Sullivan v. Jefferson Ave. R. Co. 133 Mo. 1, 32 L. R. A. 167, 34 S. W. 566; Fuchs v. St. Louis, 133 Mo. 182, 34 L. R. A. 118, 31 S. W. 115, 34 S. W. 508; Henry v. Grand Ave. R. Co. 113 Mo. 525, 21 S. W. 214; Stone v. Boston & A. R. Co. 171 Mass. 536, 41 L. R. A. 794, 51 N. E. 1; Hutchinson v. Boston Gaslight Co. 122 Mass. 219.

The evidence showed the presence of explosive gases other than those arising from oil; gases which are usually present in sewers, the result of decaying organic and vege table matter. An explosion of these gases would as readily (and more readily) account for the explosion as the theory of plaintiff. Under such circumstances, there can be no recovery in the absence of positive proof as to which of the two causes produced

the accident.

Breen v. St. Louis Cooperage Co. 50 Mo. App. 202; Searles v. Manhattan R. Co. 101 N. Y. 661, 5 N. E. 66; Dobbins v. Brown, 119 N. Y. 188, 23 N. E. 537.

The sewer was maintained by the city purely as a sanitary measure. Even if the officers in charge thereof were negligent under the peculiar circumstances of the case, the city would not be liable.

Murtaugh v. St. Louis, 44 Mo. 479; Heller v. Sedalia, 53 Mo. 159, 14 Am. Rep. 444; Hannon v. St. Louis County, 62 Mo. 313; Armstrong v. Brunswick, 79 Mo. 319; Keat ing v. Kansas, 84 Mo. 415; Kiley v. Kansas, 87 Mo. 103, 56 Am. Rep. 443; Ulrich v. St. Louis, 112 Mo. 138, 20 S. W. 466; Jefferson County v. St. Louis County, 113 Mo. 619, 21 S. W. 217; Hughes v. Auburn, 161 N. Y. 96, 46 L. R. A. 636, 55 N. E. 389.

The fact that the court reversed and remanded the case for a new trial on the former appeal disposed absolutely of no question in the case, except that if, upon such new trial, the plaintiff's evidence should be the same she would be entitled to go before the jury.

Wells v. Moore, 49 Mo. 229; Norton v. Bohart, 105 Mo. 615, 16 S. W. 598; Steinhauser v. Spraul, 127 Mo. 541, 27 L. R. A. 441, 28 S. W. 620, 30 S. W. 102; Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300; Young v. Downey, 150 Mo. 331, 51 S. W. 751; Wilson v. Beckwith, 140 Mo. 369, 41 S. W. 985; Re Meeker, 45 Mo. App. 186; Gratton & K. Mfg. Co. v. Troll, 77 Mo. App. 339.

Messrs. Lubke & Muench, for respondent:

The rules of law applicable to this case were fully and finally stated and laid down by this court when the case was before it on the former appeal.

Fuchs v. St. Louis, 133 Mo. 168, 34 L. R. A. 118, 31 S. W. 115, 34 S. W. 508; Overall v. Ellis, 38 Mo. 209; Metropolitan Bank v. Taylor, 62 Mo. 338; Adair County v. Ownby, 75 Mo. 282; Conroy v. Vulcan Iron Works, 75 Mo. 651; Chouteau v. Gibson, 76 Mo. 38; Keith v. Keith, 97 Mo. 223, 10 S. W. 597; Chapman v. Kansas City, C. & S. R. Co. 146 Mo. 481, 48 S. W. 646; Hombs v. Corbin, 34 Mo. App. 397; Lane v. Chicago, R. I. & P. R. Co. 35 Mo. App. 567; McKinney v. Harral, 36 Mo. App. 338; Galbreath v. Newton, 45 Mo. App. 312; Galbreath v. Rogers, 45 Mo. App. 324; Shroyer v. Nickell, 67 Mo. 589; Gaines v. Fender, 82 Mo. 497; Lackland v. Smith, 75 Mo. 307; Forester v. St. Louis, I. M. & S. R. Co. 26 Mo. App. 123; Bevis v. Baltimore & O. R. Co. 30 Mo. App. 564: Teichman Commission Co. v. American Bank, 35 Mo. App. 472; Elliott, Appellate Procedure & Trial Pr. § 578, p. 491; Hibbits v. Jack, 97 Ind. 570, 49 Am. Rep. 478; Hardigree v. Mitchum, 51 Ala. 151; Wells, Res Adjudicata & Stare Decisis, § 613; F. H. Hesse Printing Co. v. Travellers' Protective Asso. 81 Mo. App. 469.

The state has recognized the business of handling petroleum and its products as dangerous to human life, and has put it under regulation by providing for the appointment of inspectors, commonly known as coal-oil inspectors.

Rev. Stat. 1889, chap. 87, p. 1323; St. Louis County Ct. ex rel. Jenks v. Fassett,

65 Mo. 418.

When the safety of human life is in question, a high degree of care is required in conducting a business in itself lawful. Lee v. Vacuum Oil Co. 54 Hun, 157, 7 N. Y. Supp. 426.

The evidence showed that the sewer in question was maintained by the city in part for private purposes of its own,-those of draining the city hall, the four courts, and the jail. The case at bar therefore falls within the rule that the municipality is liable, like any individual, for the negligent use of its property.

Flori v. St. Louis, 3 Mo. App. 231; Flori v. St. Louis, 69 Mo. 341, 33 Am. Rep. 504; Carrington v. St. Louis, 89 Mo. 212, 58 Am. Rep. 108, 1 S. W. 240.

If a city neglects, after notice, or after time after which notice will be imputed to it, to remove obstructions in its sewers, and property is overflowed and damaged by reason thereof, then the property owner has a cause of action against it.

Woods v. Kansas, 58 Mo. App. 272; 2 Dill. Mun. Corp. 3d ed. § 1049; Thurston v. St. Joseph, 51 Mo. 510, 11 Am. Rep. 463; Fink v. St. Louis, 71 Mo. 52; Smith v. New York, 66 N. Y. 295, 23 Am. Rep. 53; Gilluly v. Madison, 63 Wis. 518, 52 Am. Rep. 299, 24 N. W. 137; Kranz v. Baltimore, 64 Md.

491, 2 Atl. 908; Hitchins Bros. v. Frost- city, and that it thus crossed underneath burg, 68 Md. 100, 11 Atl. 826.

Tittman, Special Judge, delivered the opinion of the court:

This suit, which is an action brought by Agnes Fuchs to recover damages for the death of her husband, Carl E. Fuchs, was filed September 16, 1892, in the circuit court of the city of St. Louis. The defendants in the suit as originally brought were the city of St. Louis and the Waters-Pierce Oil Company. The case first came to trial in April, 1893, in which plaintiff was forced to submit to a nonsuit. She appealed to this court, which affirmed the judgment of the lower court as to the Waters-Pierce Oil Company, but reversed the judgment as to the city of St. Louis, and remanded the case for a new trial. The opinion of the court on that appeal will be found in Fuchs v. St. Louis, 133 Mo. 168, 34 L. R. A. 118, 31 S. W. 115, 34 S. W. 508. The case was finally tried in the circuit court of St. Louis county, to which it had been taken by change of venue, resulting in a verdict and judgment for plaintiff against the remaining defendant, the city of St. Louis. After an unsuccessful motion for a new trial, the city appealed to this court.

Fourth street to the east line of said street, where said line intersects the lot of ground purchased by the deceased husband of plaintiff; that, under a license from the then owners of said lot, the city was permitted to construct said sewer underneath the same, and to carry it eastwardly under said lot towards the river, said sewer being located below the cellar thereafter constructed by said deceased; that when the city obtained said license from the owners it agreed with them and their assigns to keep and maintain the sewer in good order, and to care for the same, so that said lot and any improvements which might thereafter be placed thereon would be free from danger of injury on account of said sewer or the use thereof. The petition then alleges "that said sewer was provided with openings specially designed to carry off any gases which might arise in said sewer and be liable to combustion and explosion, and that said sewer and the openings thereof aforesaid, on and prior to the said 26th day of July, 1892, were in the sole care and control of defendant the city of St. Louis, its agents and servants, yet the said city, its agents and servants, knowing that said defendant the Waters-Pierce Oil Company had flooded said sewer with oil, neglected to open said vents and carelessly and negligently failed to take measures and precautions to prevent gases arising and accumulating in said sewer so as to endanger the same; and that between the said 22d and 26th days of July, 1892, gases did arise and accumulate in said sewer in great and very dangerous quantities, and on the date last named, and within six months next before the commencement of this suit, ignited and exploded with great force, throwing open said sewer underneath the property of said Carl E. Fuchs, shattering his said building, and also then and there causing the death of said Carl E. Fuchs;" that by reason of said wrongful acts of defendants, whereby the death of her said husband was caused, she has been damaged in the sum of $5,000, for which she prayed judgment. The answer of defendant was a general denial. At the close of plaintiff's case, defendant offered an instruction in the nature of a demurrer to her evidence. and at the close of the whole case it offered a peremptory instruction to find for the defendant. Both instructions were overruled by the court.

The petition alleges that her deceased husband, on or about May 26, 1884, became the owner of a lot of ground lying on the east side of Fourth street, about 139 feet southwardly of Chouteau avenue, and that in the following year he erected on said lot a building, covering the entire width of the lot, and extending back about 70 feet; that said building was of brick, three stories high, with a cellar, the cellar and the first floor being designed for the storing of wines and liquors, and the carrying on of a wine and liquor business; and that upon the completion of said building her husband fitted up and furnished said cellar and first floor with bar fixtures, shelving, etc., and thereafter, and until his death, carried on a wine and liquor business in said premises. The petition further alleges that on the 22d day of July, 1892, the Waters-Pierce Oil Company engaged in the business of buying, storing, and selling oils, had on hand in its premises a large stock of oil, in barrels and other packages, and that on said day a fire occurred in said company's premises, “and that said oil company then and there carelessly and negligently did cause, suffer, and permit the said oils to escape, and to run The evidence shows that "Mill Creek Sewinto the sewer hereinafter mentioned, and to er," as it is called, is one of the leading fill up said sewer, and to generate the gases public sewers of the city of St. Louis, and, which caused the explosion in and destruc- considering its length and dimensions, is one tion of said sewer on the 26th day of July, of the largest sewers in the world. It was 1892;" the city of St. Louis constructed a built some thirty-four years before the exmain sewer, known as the "Mill Creek Sew-plosion therein, in a most substantial maner," leading from the center of the city to the Mississippi river, and designed to drain the surface waters falling within the reach of the sewer, and to carry off into the river waters from private dwellings and certain city buildings; that, so far as it was practical to do so, the sewer was constructed beneath the public streets and alleys of the

ner that left nothing to be desired, of heavy, massive masonry, sides and arch. It takes its name from the fact that it follows an old natural creek which was known as "Mill Creek," and which formerly constituted the natural drainage of a large portion of the city, emptying into the Mississippi river at a point between Chouteau avenue and Con

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