City of Chicago v. Selz, Schwab & Co.

Mr. Justice Freeman

delivered the opinion of the court.

This cause was bystipulation submitted to the court,a jury having been waived. The amount of damages, if it should be found the city was liable, was fixed by agreement at §27,100. It is said by the city’s present attorneys that the city committed an error in making this stipulation relieving appellee from the burden of proving the amount of its damages, and we are asked not to be influenced by this solemn stipulation. Exactly what is meant by this request we are not further advised. JSTo showing was made in the trial court, and none is made here against the binding force of the agreement. The question to be determined is whether'or not the city is liable for the damages stated.

It is said by appellant’s attorneys that while there is no positive evidence of the exact manner the joint connection which came apart was originally made, it yet appears that it had been there twenty-seven years without leaking, so far as was ever discovered, had been regularly inspected, and that no evidence of negligence in its construction appears, while there is testimony of witnesses for the city, in whose opinion the original construction was good. If this be conceded, we do not deem it particularly material. The original leak may have resulted from accidental causes, the nature of which may not be known. But it was not this original leak which caused the damage complained of. It was the outburst which occurred while the cit)r’s employes were manipulating the hydrant which did the damage.

There is undisputed evidence that when the employes of the city, after long and apparently unreasonable delay, attempted to get at the source of the leak, they failed to take what would seem to have been the very obvious precaution of turning off the water from the section of pipe where it was evident the trouble lay. Here was a six-inch lateral pipe connected with an eight-inch main containing a solid body of water under a pressure of thirty-five pounds to the square inch. It was evident that either in this pipe or the hydrant connected with it or in the joint between the two, the trouble must lie. The water was running from a leak somewhere in that hydrant basin and had been all night. Appellee had been trying for hours to get the city employes to attend to it. Yet no effort was made to turn off the water while investigation was made; and not only ivas this obvious precaution neglected but there is evidence tending to show also that the upright top of the hydrant was moved back and forth in a manner which it requires no expert to tell us might, with the leverage so exerted, break a solid inflexible joint between the six-inch lateral pipe and the upright hydrant. The outburst of water occurred while the city’s employes were at work at the hydrant, but whether its immediate cause was the act of the workmen in moving the hydrant top or not we need not determine. It would naturally be difficult, perhaps, to dig out the manure filling the basin around it without pressing against and disturbing the hydrant somewhat, and this fact, it would seem, ought to have emphasized the necessity of taking the precaution of shutting off the water beforehand, when it was known, as it was, that there was a leak, suggesting a possible break in the pipes or joint. To take the risk of thus increasing the leak or breaking the joint without first turning off the water, was to invite just what occurred, and amply justified the finding of the trial court that the damage was the result of appellant’s negligence.

It is urged by appellant’s counsel that the hydrant was one of the appliances of the fire department of the city, and that even if the damage was the result of the city’s negligence it is nevertheless not liable. This contention can not be sustained. It is not suggested that the accident was occasioned by any use of the hydrant for purposes of fire protection, nor by the fire department. It was caused by negligence of the city’s employes, acting for the city in the use of its powers as a private corporation. The waterworks system was not constructed, nor is it used solely for fire protection, nor in the exercise merely of the city’s governmental functions. It is a business which may be carried on under a proper franchise by a private corporation. The facts are undisputed that vrhile this was a fire hydrant it was also used as a source of supply of water sold to street sprinkling contractors. Though impressed with a public use because conferred for the public advantage, yet the authority to supply citizens of the municipality with water is not exercised by appellant solely in pursuance of its powers of sovereignty. In its capacity as a private corporation “ it stands upon the same footing as would any individual or body of persons, upon whom the like special franchises had been conferred.” Wagner v. City of Rock Island, 146 Ill. 154-155. It is therefore liable to actions for damages in the same manner as such individual or private corporation would be under the like circumstances. Nevins v. City of Peoria, 41 Ill. 502. In the case of Aldrich v. Tripp, 11 R. I. 141-146, it is said: “We do not think it material that the public has the use of the waterworks for the extinguishment of tires. The injury complained of did not result from any use of them bj^ the fire department. It is claimed to have resulted from the careless management of a hydrant by employes of the water commissioners.” The city is liable for the negligent acts of such employes. The general rule is that when a business is conducted by a municipality in part for profit, even if principally for public purposes, the municipality is liable for damages caused by negligence in its management. Neff v. Town of Wellesley, 148 Mass. 487; Worden v. City of New Bedford, 131 Mass. 23.

We regard the declaration as stating a good cause of action. It is where the statement shows a defective cause of action that the declaration is-not aided by verdict. C. & A. R. R. Co. v. Clausen, 173 Ill. 100-105; C. & E. I. R. R. Co. v. Hines, 132 Ill. 161. We have considered the various objections discussed at great length in the briefs, but discover no reversible error in the record. The judgment of the Superior Court must be affirmed.