A. J. Brown & Son, Inc. v. City of Grand Rapids , 265 Mich. 465 ( 1933 )

This is an appeal from the superior court of Grand Rapids which heard the case without a jury and rendered judgment for the city of Grand Rapids and two other defendants and against plaintiff, a merchant who incurred damages to the agreed amount of $3,494.95 to its stock of seeds in the basement of its store caused by water from a bursted pipe of the Grand Rapids waterworks, a municipally-owned water system conducted for gain, and the successor of the Grand Rapids Hydraulic Company, a private corporation, which built the main about thirty-three years ago when Grand Rapids was smaller than it is now, a city of 168,592, according to the United States census of 1930.

Furnishing water for profit is not a governmental function but a business conducted for profit.

By the charter of Grand Rapids, 1916, as amended, the city manager shall have "charge of and supervise the construction, maintenance and repair of waterworks property and service." Section 95, subd. (d).

An accident is an event which under the circumstances is unusual and unexpected by the person to whom it happens, but it happens in obedience to physical laws.

Negligence may be presumed from the happening of an accident which in the ordinary course of things would not have happened without negligence.

The flooding of plaintiff's store basement could not have happened without someone's negligence.

Either the old service pipes of the Hydraulic Company laid to supply a small town with water were weakened after 33 years service as shown by the partial break indicated by the defect found at the break, or the pressure was too great, causing the old pipe to break and cause the damage complained of. The city had neglected inspection ever since it acquired the hydraulic plant and it offered no proof of inspection or examination when it purchased the plant.

As this court said in Barnowsky v. Helson, 89 Mich. 523, 525 (15 L.R.A. 33):

"If the wall of a building falls down, and injures a person walking along the street or standing beside the building, the clear presumption is that the building was either negligently built, or that it was not kept in a reasonably safe condition after it was erected, since buildings properly constructed do not ordinarily fall of their own weight." Followed inGerstler v. Weinberg, 160 Mich. 267.

In LaFernier v. Soo River Lighter Wrecking Co., 129 Mich. 596, at page 607, this court said of a vessel:

"Upon her first voyage * * * only two-thirds loaded, in smooth water and a comparatively light wind, she sank."

Her captain knew of no reason why she sank. The court said she was unseaworthy.

In Gerlach v. Railway, 171 Mich. 474, 484, Justice BROOKE, in rendering the opinion of the court, said:

"The plaintiff's case was predicated, not only upon the fact that the handhold pulled out and the accident happened, but upon evidence that the wood underneath the lugs was decayed to such an extent that the screws drew out, and upon further evidence that the appearance of the wood immediately outside the lugs was such as might reasonably lead a careful and prudent inspector to suspect the existence of decay in the timber," citing Michigan cases.

This court has held that the bare occurrence of an accident is not evidence of negligence sufficient to take the case to the jury.

In this case there was evidence of the defect in the pipe and the question of electrolysis as well as the occurrence of the accident.

In Burghardt v. Railway, 206 Mich. 545 (5 A.L.R. 1333), this court held that "negligence may be established by circumstantial evidence and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is made," citing Alpern v. Churchill, 53 Mich. 607, and other cases. This case was cited and followed in Bacon v. Snashall, 238 Mich. 457.

The true rule seems to be that the occurrence with its accompanying circumstances is such as to warrant the inference that it was the result of causal negligence.

In Kaemmerling v. Athletic Mining Smelting Co. (C. C. of A., 8th Circuit), 2 Fed. (2d) 574, on page 583, it is said:

"In all well-considered cases the duty of explaining an accident which, with its attendant circumstances, makes out aprima facie case of negligence, is placed upon the defendant. * * * The same thought is suggested in Sweeney v. Erving,228 U.S. 233 (33 Sup. Ct. 416, Ann. Cas. 1914D, 905)."

In the Sweeney Case, supra, on page 239, Justice Pitney, giving the opinion of the court, said:

"Plaintiff's insistence was not merely that the evidence of the occurrence of the injury under the circumstances was evidential of negligence on defendant's part, so as to make it incumbent upon him to present his proofs; the contention was that it made it necessary for him to prove by a preponderance of the evidence that there was an absence of negligence on his part."

That was necessarily so. The defendants did put in evidence in this case.

The judgment should be reversed, with costs to plaintiff, and a new trial granted.

SHARPE, J., concurred with WEADOCK, J.