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with but little surface ballast to cover it, there was an open break of 300 feet or more in length. These are the general facts of the case, as shown by the voluminous record in this case. Other specific facts, bearing more immediately on the principles of law involved, will be noticed and mentioned hereafter.

vent street, about four blocks east of the Fuchs premises. At its mouth at the river, the sewer is about 24 feet by 14 feet in dimensions, and grows smaller as it reaches its western or beginning point. At the place where it runs under Fuchs' premises its dimensions, according to the testimony of Mr. Colby, the sewer commissioner, is 20 by 15 feet. The natural creek ran in a diagonal Counsel for appellant, in his brief and in direction over the lot acquired in 1884 by his printed and oral argument, insisted that Mr. Fuchs. At the time when he purchased the court erred in not sustaining its dethe sewer had already been constructed and murrer to plaintiff's evidence at the close of covered with earth or ballast. This he re- her case. When that demurrer was overmoved, in order to construct his cellar, leav- ruled, defendant waived its objection to the ing about 6 inches of earth or cinders be- action of the court, by afterwards introtween the floor of the cellar and the top of ducing evidence in its behalf. But having the sewer arch. The premises of the Waters offered a peremptory instruction to find for Pierce Oil Company were situated on Gra- the defendant at the close of the case, and tiot and Thirteenth streets, and in their having duly preserved the point, we are reyards were erected a number of sheet-iron quired to review the evidence taken as a tanks, and stored a number of barrels con- whole (Hilz v. Missouri P. R. Co. 101 Mo. taining oils. On July 22, 1892, a fire broke 36, 13 S. W. 946; Weber v. Kansas City out in these premises, during which a num- Cable R. Co. 100 Mo. 194, 7 L. R. A. 819, 12 ber of tanks and barrels caught fire. Some S. W. 804, 13 S. W. 587; Hite v. Metropoliwere left intact, the oil in some exploded tan Street R. Co. 130 Mo. 132, loc. cit. 141, and was consumed in the explosion, while in 31 S. W. 262, 32 S. W. 33), and when this others it was displaced by the throwing of is done, then, in the light of the principles water into the tanks by the fire engines. of law applicable thereto, there can be but The water mixed with burning oil ran one conclusion, and that is that the plaintiff through the premises and down into what is cannot recover in this action. At the outset known as the railroad valley. There being it may be stated that there is not the slightdanger that some of the standing cars might est testimony in the record tending to prove catch fire, drains or chutes were constructed the allegation in plaintiff's petition that, by the railroad people and by the firemen, when the city constructed the sewer through and it appears that this running water and and underneath the lot subsequently acoil was led between the tracks to a drain or quired by the deceased, it agreed with the inlet in the valley, the surface of which was then owners and their assigns to keep and covered with cinders. Some of the oil and maintain said sewer in good order, and to water ran into a drain or inlet in the yard care for the same, so that said lot and any of the oil company's premises. At the time improvements which might thereafter be of the fire the Mississippi river was at a placed thereon would be free from danger very high stage, and the mouth of the sewer or injury on account of said sewer or the was submerged by high water. The explo- use thereof. This allegation, of necessity, sion which caused Mr. Fuchs' death occurred implies a contractual relation existing be in the afternoon of July 26, 1892, or four tween the deceased and the city. There bedays after the fire. It appears that the ing no evidence to support it, it follows that Peters Fish & Oyster Company, a concern any idea of such contractual relation bedoing business at the French Market, which tween the parties must be eliminated from was somewhat south of Mr. Fuchs' place, this inquiry, and it further follows that used in connection with their business a whatever claim the plaintiff may have basement under house No. 1026 South against the city must be predicated upon Fourth street, about five stores south of Mr. the nonperformance of a legal duty due and Fuchs' place. An employee named Humpert owing by it to the deceased. Such duty and was at work in the cellar storing melons, its violation, upon which the plaintiff bases and, happening to pass over a drain in the her claim for damages, must be found in cellar floor with a lighted candle, there was and determined by the allegations of the pea sudden flash of flame, and almost simul- tition. These allegations are: That oils taneously the explosion in the Mill Creek escaped from the Waters-Pierce Oil Comsewer occurred. The drain or sewer thus pany at the time of the fire hereinbefore referred to connected with a sewer in the referred to; that they ran into the Mill rear of the premises, which in turn con- Creek sewer; that such oils generated gases, nected with the Mill Creek sewer, as one of and that such gases caused the explosion in its numerous connections. Only that por- and destruction of the sewer on July 26, tion of the sewer was blown up which was 1892, by which explosion deceased lost his immediately under the cellar. In the back life; that the sewer was provided with openyard, where the earth had not been removed, ings specially designed to carry off any gases the sewer remained intact. According to the which might arise in said sewer and be liatestimony, the break in the sewer at Mr. ble to combustion and explosion; that, nevFuchs' place indicated clearly the outlines ertheless, the city, knowing of the presence of the former cellar floor. About two blocks of oil in the sewer, neglected to open said cast of the Fuchs place, and nearer the river, vents and carelessly and negligently failed where the slope of the ground is downward, to take measures and precautions to pre


vent gases arising and accumulating in said | sive when mixed with air. These are the sewer so as to endanger the same. It will only witnesses who refer to the subject on thus appear from these allegations that behalf of plaintiff. That explosive gases plaintiff charges that the gases which were form in sewers and are ever present therein generated in the sewer were so generated was also shown by experts introduced by from the oils which escaped and ran into the defendant. Since, then, the gases which sewer from the Waters-Pierce Oil Company, form naturally in sewers are as highly inat the time of the fire on its premises which flammable and explosive as the vapors caused the explosion. It will also appear thrown off by kerosene or other oils, that there are two charges of negligence, and since there was no evidence furnished namely, one as a specific charge of negli- by plaintiff from which the jury could draw gence, in that the city, knowing of the ex- the inference that the explosion was of the istence of oils in the sewer, did not open the latter rather than of the former character vents specially designed for the purposes of, of gas, it cannot be said that the allegations presumably, to permit the gases thus gen- of the petition were established, or that the erated to escape, and, in addition, another verdict should be permitted to stand. charge of negligence to the effect that it fact the theory that the explosion was carelessly and negligently failed to take caused by the usual sewer gases is the more measures and precautions to prevent gases likely one, since all the witnesses agreed arising and accumulating in the sewer. In that the oils which escaped during the fire these allegations of nonaction on the part of at the Waters-Pierce Oil Company's premthe city are contained the charges against ises will throw off vapors in comparative it of legal duties not performed. abundance only when subjected to heat. Upon this subject Egner stated that it could not be told how much oil it would take to generate enough gas in Mill Creek sewer under ordinary temperature to cause such an explosion as that which occurred. He did say, however, "I should think it would require a good deal of it in a large sewer like that. Assuming the temperature of the sewer to have been 60 or 70 degrees, or even 75 degrees, the quantity of vapor generated from crude petroleum would be comparatively small." Witness further stated that the temperature in a sewer would likely be lower than the temperature in the exposed atmosphere. Mr. Choller, also a gas engineer, who had made a special study of the subject, testified that even if petroleum or crude oil got into the sewer it would not have cast off gasoline or coal oil under a temperature below 95 degrees. Therefore, if at the fire crude oil found its way into the sewer, that would not account for the presence of either coal oil or gasoline, because the application of heat would be necessary to produce either. As for coal oil, or kerosene, they are combustible, but not explosive. It was for plaintiff to account for the explosion and the causes of it, and, there being present at least two independent causes, and no proof as to which of the two was responsible for the accident, there can be no recovery. Breen v. St. Louis Cooperage Co. 50 Mo. App. 202; Searles v. Manhattan K. Co. 101 N. Y. 661, 5 N. E. 66; Dobbins v. Brown, 119 N. Y. 188, 23 N. E. 537.

1. It is conceded that oil escaped from the Waters-Pierce Oil Company at the time of the fire, and it may fairly be inferred from the evidence that some of the escaping oil ran into the Mill Creek sewer; but a careful reading and re-reading of the record herein fails to disclose any evidence from which even an inference could be drawn that sufficient oil flowed into this large sewer from which were generated sufficient gases to cause the explosion complained of. Indeed there is a total lack of evidence to prove that the explosion was, in fact, caused by gases generated from the escaping oils, as charged. On the other hand, the evidence showed that there were gases other than those arising from oil, present in the sewer at the time of the explosion,-gases which are always present in sewers, and which form as the result of decaying organic and vegetable matter, and which are both inflammable and explosive. Plaintiff's witness Frederick Egner, a gas engineer, testified that from his general reading he knew there was a constant generation of inflammable gas in sewers from vegetable and animal matters, which is called sewer gas, and is a mixture of sulphuretted hydrogen and marsh gas, the latter of which emanates from decaying vegetable matter. He had heard of gases which would ignite and burn spontaneously on the surface of water in a stream or lake when stirred up. He had read of such cases, and believed such gas was common in sewers, because the conditions were favorable. Such gas was generated from human excrement and rotting vegetables and animal 2. There is no evidence in the record to matter. He believed that the explosion of show that there were openings into the sewsulphuretted hydrogen and marsh gas would er "especially designed to carry off any be of the same violence as the explosion of gases which might arise in said sewer and petroleum vapor. So also testified plain- be liable to combustion and explosion." The tiff's expert Hunicke. He states that a gas evidence, what there was of it on this subgenerates from decomposing vegetable mat- ject, tends to show that there were certain ters which is called methane or marsh gas, manholes and certain inlets. The former and which is explosive; another gas, accord- were intended as a means of ingress and ing to witness, which generates from human egress for making inspections of and repairs excrement, being carbonic acid, more or less, in the sewer, whilst the latter were intended and sulphuretted hydrogen. The latter gas to permit the surface water from the streets smells like rotten eggs, and is quite explo-to flow into it. Moreover, the evidence tends

to show that from the river to Sixth street, | of Atlanta, alleging that the city had opened one block west of Broadway, there were, be- two manholes, 2 feet in diameter, with persides the many private sewer connections, forated tops, into the large sewer extending altogether six manholes, which, with the ex- along Wheat street, both within a few feet ception of perhaps one, had perforated cov- of petitioner's property, which fronts 290 ers, twenty-seven open inlets, and two open feet on Wheat street, and 150 feet on Courtvaults. Two of these open, grated iron cov- land street, where she and her family have ers were situated in the alley in the rear resided for twelve years, one of the manholes of the Fuchs place; an open inlet on the being on the corner of the two streets, and southwest corner of Broadway and Chou- the other on Wheat street, with no trap or teau avenue opposite thereto, and one man- obstruction to prevent the foul sewer gas hole somewhat south thereof, near the meat from coming up through the same; that this market, which had a solid cover. But as to gas is exceedingly offensive and dangerous this the removal of the cover would have to the health and lives of petitioner and been useless, because, at the request of the other occupants of her premises. It comes people of the neighborhood, the city had put up in great volumes, especially after a short a "goose neck" device into that manhole to dry spell, and is distressingly troublesome prevent the odors and gases of the sewer and annoying in warm weather, driving pefrom emanating therefrom. It was so con- titioner and her family and friends from the structed that the gas could not issue out of veranda of her house, compelling her to shut the sewer, cover or no cover. Notwithstand the windows in the warmest weather, and ing all these openings, it is apparent that making life unbearable; that she had made whatever gases there were in the sewer did frequent applications to the various officers not rise and escape therefrom. But suppose of the city, all with no effect, etc.; that the we concede, as is claimed by respondent, way to abate the nuisance is to place a solid that there were certain closed covers to some instead of a perforated top on the manhole, of the sewer openings which might have been and she prayed "that the state's writ of inremoved; it does not appear that their re- junction do issue, restraining the said demoval would have done any practical good. fendant from keeping said mouths of said To say so is to indulge in mere conjecture. manholes open, and from continuing said 3. Assuming that the allegations of re- nuisance in front of petitioner's premises." spondent's petition with respect to the mat- The court below, after hearing, ordered ters hereinbefore referred to have been "that the defendant be enjoined from conproved, what was, as a matter of law, the tinuing said manholes in such condition as appellant's duty with respect to the prem- to allow the escape of noxious gases," and ises? A sewer is defined to be "a drain or this action of the lower court was affirmed passage to carry off water and filth under by the supreme court. Hardy v. Brooklyn, ground; a subterraneous channel, particu- 90 N. Y. 435, 43 Am. Rep. 182, was an action larly in cities." Webster, Dict. Sewers are against the city for damages resulting from constructed as sanitary measures, for the a nuisance alleged to have been caused by public good, to carry off all sewage, consist- the negligent construction of a sewer. It ing of human excrements and refuse animal appeared that by the plan of the sewer, as and vegetable matter, which, as the testi- adopted and filed by the board of water commony shows, and as everybody knows, con- missioners, it ran past plaintiff's premises stantly and continuously generates gases, to a point where it would find a proper disnoxious and dangerous, as the result of the charge. The sewer was constructed to a constant and continuous process of nature. point a short distance above the plaintiff's It is intended and is the object of sewers to premises, and there a wooden trough or carry off and to guard the substances from shoot was built to carry off its contents, in which they spring. Sewers are supposed to consequence of which noxious and deadly be covered, and to be so constructed as to gases were emitted, injuriously affecting prevent the escape of gases generated in plaintiff's premises. The plaintiff recovered them. It is not intended that they be per- damages, and the court of appeals affirmed mitted to disseminate and breed disease, or the judgment. The plaintiff in this case to cause injury to personal or property charges a dereliction of duty on the part of rights. If this is not so, then there is no the defendant in not opening its vents or need of sewers, and whilst it is necessary, in manholes to permit the generated gases to crder that the city may, in the exercise of escape. In the Georgia case referred to, the its ministerial function, properly repair and city was enjoined from opening the manmaintain its sewers, that there should be holes permitting the gases to escape. In the certain openings or manholes, to permit in- New York case, the city was mulcted in damgress thereto and egress therefrom, and ages because it permitted gases to escape. hence it becomes necessary to occasionally We have thus presented to us the anomaly remove the covers, the city would be remiss that, if plaintiff's theory be correct, the city in its duty were it to deliberately remove is liable, on the one hand, for not opening the covers for the purpose of permitting the escape of all the vile, noxious, and dangerous gases which, through nature's laws, are constantly produced therein. Thus, in Atlanta v. Warnock, 91 Ga. 210, 23 L. R. A. 301, 18 S. E. 135, Mrs. Warnock brought her petition for injunction against the city

the manholes, and for not permitting the gases to escape, and, on the other hand, to be enjoined or mulcted in damages for doing so. As Judge Sherwood says, in his dissenting opinion on the former decision of this case (133 Mo. loc. cit. 200, 34 L. R. A. 126, 34 S. W. 514): "Again, if the city is to

be held responsible for failing to keep open the vents to the sewers within its jurisdiction, is it to be held liable also if some person passing while the vents are open casts a lighted match into one of them, or the gas from it rises and catches fire from a street lamp, thereby causing an explosion? Is it possible that the city be thus held responsible whether it does or does not open vents? And yet if the position taken by plaintiff as ground for recovery in this action be correct, that the city is responsible for the gases which breed in its sewers, then the spectacle will soon be presented of actions for damages against the city, because: First, it does not open its sewers, and thereby allow the gases therefrom to escape, thereby causing an explosion; because, second, it does open its sewers, and thereby an explosion is caused; because, third, it opens its sewers to allow the gases to escape, and thereby becomes liable for diseases and death, scattered by reason of the escape of such gases." That the manholes or vents should not be kept open to permit the escape of dangerous gases is demonstrated by the facts of this case. If the drain or sewer in Peters' cellar, four or five stores south of Fuchs' place, into which gas was evidently forced from the Mill Creek sewer through connecting sewers, had not been open, permitting gas to escape into the cellar, and to come into contact with Humpert's lighted candle, the catastrophe would never have happened. The cause of the unfortunate death of Mr. Fuchs was because there was an open inlet, through which gas escaped, which, coming into contact with the flame of the candle, caused the explosion. We conclude therefore that it was not the duty of the city to open its manholes in order to permit the escape of gases that had accumulated in the sewer.

4. The other allegation of negligence, namely, that the defendant "carelessly and negligently failed to take measures and precautions to prevent gases arising and accumulating in said sewer," is easily disposed of. There was no evidence to sustain this allegation. As we have stated, the testimony shows that there is a constant generation of inflammable gases in sewers, and there was not the slightest suggestion on the part of any one of the witnesses as to any known method of arresting what counsel for appellant aptly calls "one of the never-ceasing processes of nature." On the contrary, the testimony was all the other


5. At the trial of this case, the plaintiff, against defendant's objection, was allowed to show by her expert witness, Prof. H. A. Hunicke, that, if a manhole cover had been removed, in his opinion the use of a fan or blower of seven horse power would have eliminated the gases, so as to render them nonexplosive by blowing air into or sucking the gases out of the sewer. The petition in the case alleged two specific acts of negligence against the city: A failure to prevent the formation and accumulation of gases, and a failure to ventilate the sewer by open

ing the vents specially designed to carry off gases. There was no allegation of neglect of duty on the part of the city in not using a fan or blower or any other contrivance or design to carry off or destroy the gases. It is settled that, where specific acts of negligence are charged, evidence of other acts is inadmissible. Atchison v. Chicago, R. I. & P. R. Co. 80 Mo. 213. The testimony should therefore have been excluded. There are other reasons why the testimony of this witmess should have been disregarded, and the jury should have been instructed so to do as requested by appellant. His testimony, so far as it is necessary to refer to it, is substantially as follows: "I am a consulting chemist and mining engineer, and have been for sixteen years. I was for four years professor of applied chemistry at Washington University, St. Louis, from which university I am a graduate. I have had practical experience in mines in New Mexico, Colorado, and Illinois, and am familiar with coal oils and other substances. Petroleum is the term applied to a mineral oil occurring in nature. Petroleum means oil from the rock, and is equivalent to crude oil as it is pumped from the earth. Petroleum when released will evaporate at all temperatures. It will give up the lighter constituents until the air about it is saturated. It is the same as with water. The air around it will take up so much water as will saturate it. The evaporation naturally increases as the temperature increases; that is, the higher the temperature the more rapid the evaporation. The less volatile and more solid portion of the oil will remain. All the vapors of petroleum are combustible, and will explode when mixed with the proper amount of air or oxygen. Explosion is a rapid burning. In order to produce an explosion there must be an ignition. None of these oils or products that I have mentioned appear in mines, but gases do. Gases accumuÎate more in coal mines than in metal mines. I had some experience in taking care of mines and removing gases from them. I have heard the manholes on Fourth and Fifth streets described, but don't know that I have ever seen them. Q. Now, suppose these manhole covers were removed, or a manhole cover was removed from one of the manholes, what scientific appliance was there, well known previous to 1892, for creating a draft through this manhole? (Το which question counsel for defendant objected, on the ground that the witness had not qualified or undertaken to qualify to answer the question, he not having pretended that he ever made a study of the science or method of removing gases from sewers.) Court: From the experience you have had, practically and scientifically, can you answer that question? A. To know what to do? Court: Yes. A. I might say at the outset that it is an engineering, not a scientific, problem, and would depend very largely on the individual who has charge of it. Q. As an engineer, can you answer us? A. Well, things that might suggest themselves to me as a mining engineer might not present

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themselves to others. Q. Professor, I will want a certain ratio of inlet and outlet. ask you the question this way: Was there, don't know how many drains, inlets, openprevious to 1892, any well-known appliance ings, or connections there were to the Mill or means for ventilating, by means of which Creek sewer within a circle of 500 feet a sewer could be ventilated, a manhole cover around the manhole where I stood and would being removed? (To which question de- station the blower or fan, but I say that fendant, by its counsel, again objected, on without knowing that, and without myself the ground that the witness had not quali- having experimented with this sewer, or fied as an expert on the ventilating of sew- having seen it attempted anywhere in the ers, and had further already stated that he world, my plan would have prevented an exis a mining engineer, and what would sug- plosion. I say that, because the connecgest itself to an engineer in charge of a tions can be opened and closed, and if the sewer.) The Court: If you know of any gas had been sucked out the fresh air would one you may answer it. (To which action have rushed in to supply its place to such and ruling of the court, defendant, by coun- an extent that a flame held at the opening sel, then and there duly excepted.) A. So would not have ignited it. I have never it refers only to one hole? Q. Yes. (Coun- attempted to use a blower myself in connecsel for defendant again objected, on the tion with a sewer, nor have I ever seen one ground that this question of the witness and used, and, as I have stated, I have no expeanswer of counsel made the question still rience or observation in that direction. I more incompetent.) The witness proceeds: know that the Mill Creek sewer extends to a The means would have been possible, but mile west of the river, and that other sewunder the circumstances it would require ers, of various sizes, and from all directions, considerable time to eliminate the gases by lead into it, and I know that some of them simply opening a manhole. It would be have open or perforated covers. But, notnecessary to apply means, and nothing short withstanding all these connections and openof a blower would have done in that case. ings into the main sewer, I should not hesiA blower of, say, seven horse power would tate to apply the blower on my plan. 1 have removed the air, or replaced the air know that a blower would have been effectsufficiently to be nonexplosive, within thirty- ive without ever having experimented. I do six hours. When the crude oil got into the not recollect whether or not at the last trial sewer, it would tend to evaporate and rise, I testified that the thought of using the fan like sugar in coffee, although the sugar is or blower had occurred to me as a scientific heavier than the coffee. This vapor, rising possibility, but that without a practical exup in the sewer, would continue through the periment I could not say whether it would air until the air was saturated and could accomplish any result; since I testified last take up no more, and will tend to creep out time I have made no experiments to ascerthrough any overhead holes. The most nat- tain whether the plan was a practicable or ural point for placing the blower would be feasible one." It will appear from the foreat the opening closest to the river. Either going that the witness is a mining engineer a pressure blower or suction fan might have and a consulting chemist; that he never, as been applied at a point further up. Fans a scientist, investigated the ventilation of will either blow or draw air, so the point sewers, and never gave the subject of sewers may differ. It would be preferable to blow a particular or special study; that he did the air in instead of drawing it out. Crossexamination: I never saw any practical attempt made, either in the city of St. Louis or in this country, or anywhere in the world, to extract gas out of a sewer by means of a fan or blower. Neither did I ever know of any sewer commissioner anywhere in the United States attempt to blow air into a sewer filled with gas, or suck air out of a sewer filled with gas, by means of a fan. I can't give any positive information touching that, and I never saw it done. I know that experiments have been made in London, but I have no knowledge or observation of its ever having been put to practical use. I don't know whether, in order to suck air out of a sewer, it would be necessary to close all of the apertures except the one at which the fan was at work in order to create a suction. That would depend upon what the purpose of the suction was. If you were trying to suck gas out of this court room, and the windows were all up, and you put your fan at one of the windows, it would not work. In order to make the fan work and create a suction, I would want an opening at which to put the fan, and the balance of the openings closed. I would

not claim that his proposed remedy had ever been practically applied, or even made the subject of experiment by himself. He says that he never saw any practical attempt made in St. Louis, or in this country, or anywhere in the world, to extract gases out of a sewer by means of a fan or blower, nor did he ever know of any sewer commissioner anywhere within the United States attempting to blow air into a sewer filled with gas, or suck air out of a sewer filled with gas, by means of a fan. He could not give any positive information about that, and he never saw it done. Experiments were made in London, but he had no knowledge or observation of its ever having been put to practical use. He never had attempted to use a blower in connection with a sewer, nor had he ever seen one used, nor had he ever had any experience or observation in that direction. He had testified in the case twice before, but had made no experiments with respect to the matter since that time. So far as the record shows, Prof. Hunicke's proposed remedy is a mere theory of his own. Practical engineers, who had devoted years to the study and management of sewers, testified that Mr. Hunicke's scheme is entirely

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