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and that the interest of said plaintiff in said of the definition denoting a form of alimony premises is of the value of $3,000, and the said known only to the modern law, not to the sum of $1,400 is a valid lien on said lot, and ancient. It may be for the wife's use durthe said sum of_$3,000 is a valid lien on said ing the pendency of a suit, called alimony S. W. I of S. E. 1, Sec. 31, T. 11, R. 2 W. pendente lite, after its termination,

It is further ordered and adjudged by known as permanent alimony." See also the court that the plaintiff have and recover further definition in note 1 on same page. of the defendant, Rachel B. Greene, the sum In $ 469, in the same volume, the auof $4,400, the value of his equitable interest thor observes: “If a husband is obliged to in the property herein before described, and seek divorce from his wife, and the propthat said sum be a lien on said premises the erty of the two is mainly or entirely vested order named.' From this latier portion of for her separate use, it will, under special the decree this appeal has been prosecuted. circumstances, be impossible to do justice

One of the questions presented is, Cav ali without transferring to him some of this mony be allowed to the husband? Ali- property. And perhaps there may be statmony is defined in 351, vol. 2. Bishop.ntes in some of our states under which someMar. & Div. 6th ed. as follows: Alimony, thing approximating this can be done. But it in divorce law, is the allowance which a cannot generally. Nor, where the common· husband pays, by order of court, to bis wife, law rules of property prevail, are the circumwhile living separate from him, for her stances numerous in which it ought to be; bemaintenance; or it may be a like provision cause these rules put what justly belongs to the ordered for the sustenance of a woman di wife as well as to the husband into his hands, vorced from the bond of matrimony, out of to be used by him for the family support as her late husband's estate-the latter branch I well as his own. Yet legislation in some of

£350 derived from his business, the court ordered a settlement amounted to £1,050 a year. Farringber to settle €250 for life on ber husband, and £60 ton v. Farrington, L. R. 11 Proh. Div. 84. on each child, and refused to make the allowance And a husband was awarded a settlement out of variable according to the possible valuation of the the wife's income to be held for him and his chil. wife's property. 20 & 21 Vict. $ 45, provided that dren, where she was guilty of adultery, but the on divorce for adultery of the wife, where she bad court beld that it could only deal with property to property, the court could order such settlement of which she was entitled in possession or reversion. such property for the benefit of the innocent Milne v. Milne, L. R.:. Prob. Div. 295. party and their children. Midwinter v. Midwinter And a husband was awarded half the wife's pres. [1893] P. 93.

ent and reversionary income, for himself and his And under this statute, where the wife was children, where the marriage was dissolved for guilty of adultery, the court allowed to the bus- adultery of tbe wife. Noel v. Noel, L. R. 10 Prob. band on divorce such a portion of her settled prop- Div. 179. erty as would place him somewhat in the status in But the court refused to award the husband the which he would have been had the union contin. money due to a wife on a settlement out of her ued. March v. March, L. R. 1 Prob. & Div. 439. father's estate, and gave the property to their

So, a husband who had accepted an allowance children on account of her adultery. After a final under a deed of separation, and subsequently bad decree the court could not make a retrospective grounds for dissolution of marriage, was allowed order under 22 & 23 Vict. chap. 61, . 5, as to divian increased provision out of his wife's income un. dends due and payable before the date of the der 22 & 23 Vict, chap. 61, $ 5. providing that the order. Paul v. Paul, L. R. 2 Prob. Div.93. court after a final decree of nullity of marriage And the court refused to change an order of setmay inquire into settlements and make such or

tlement so as to give the husband use of the ders as to the court shall seem fit. Benyon v. Ben- property settled on the wife, until she should yon, L. R. 1 Prob. & Div. 447, 45 L. J. P. 96, 24 Week. produce their child, which she had abducted, Rep. 950.

having been permitted access to the child by an On a motion subsequently made in this case to re. order of the court. 22 & 23 Vict, chap. 61, $ 5, was duce the allowance on account of the depreciation not intended to be used for a collateral purpose. of the securities and estate of the respondent, the Symonds v. Symonds, L. R. 2 Prob, Div. 447. court refused to make any change. An order made As to varying marriage settlements where there is not liable to change on account of subsequent are no children, » & 23 Vict. chap. 61, § 5, was circumstances. Benyon v. Benyon, L. R. 15 Prob. amended (41 Vict. chap. 19. & 3), and under the Div, 29, 54,

amendment they may be varied. Yglesias v. Ygles. Under 22 & 23 Vict, chap. 61, 85, the court had ias, L. R. 4 Prob. Div. 71, 40 L. T. N. S. 37, 27 Week. power to order a variation of the settlement, where Rep.482. a decree of dissolution of marriage was granted on The court refused to vary a settlement by amendthe husband's petition and there had been a settle- ing the clause giving to the wife an income of the ment in contemplation of marriage under the settled property, and adding, should be received Scotch law. Nunneley v. Nunneley, L. R. 15 Prob. by the petitioner dum sola et custa rirerit. Gladstone Div. 186.

1. Gladstone, L. R. 1 Prob. Div. 442, 45 L. J. Prob. And where a wife refused to obey a decree of res. 82, 35 L, T. N. S. 380, 24 Week. Rep. 7:39. titution of conjugal rights the court ordered her And under 22 & 23 Vict, chap. 61, $ 5, providing to settle a permanent maintenance on her husband that after a final decree of dissolution of marriage under Mat. Causes Act 1884, 83, providing that the court may make such orders in regard to the where the application for restitution of conjugal property settled, either for the benefit of the chilrights is by the husband, and the wife is entitled to dren of the marriage or their respective parents, as property or earnings, the court may order a settle to the court shall seem fit, the court cannot make ment for the benefit of the petitioner and their an order favorable to the husband as to such settlechildren. Swift v. Swift, L. R. 15 Prob. Div. 118. ment, where the children are all dead, as when

A marriage settlement was varied allowing the there are no children there can be no parents. Corhusband $300 a year during the joint lives of the rance v. Corrance, L. R. 1 Prob. Div. 495. husband and wife, wbere the wife's income under

I. T.

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the states is setting strongly in a direction ulti- / support the findings and decree of the court. mately to exhibit the spectacle of rich wives To this attorneys for appellee answer that tbere supporting poor husbands; and of busbands was testimony offered and received at the trial defrauding their creditors while wealth em in the district court wbich was not made a part braces them in the arms of their wives. This of the bill of exceptions, and is not presented condition of things is for the legislatures, pot in this court, and that it is the established rule, the courts; but the courts, seeing these things, when such is the existent condition of the recmay also see a reason why they should not feel ord, that the question of the sufficieney of the compunction when, in a proper case, they evidence to sustain the findings and judgment withbold all allowance of alimony to the wife." will not be examined. The record in this case “Alimony is allowed the wife in recognition of discloses that the bill of exceptions was prethe husband's common-law liability to support pared and presented to the attorneys for ap· her. Therefore, in the absence of legislation pellee for examination and amendment, and readjusting domestic relations and allowing it, was returned to the attorney for appellant inthere being no corresponding liability on the dorsed, “I herewith return this draft of a bill wife's part to support her husband, alimony of exceptions in the case of Charles Greene v. cannot be granted to him. In several of the Rachel B. Greene, submitted to me on thestates, however, alimony, or an allowance from day of ---, 1893, and propose no amendments the wife's estate in the nature of alimony, is thereto.” It was said by this court in deciding allowed the husband by statute.” 1 Am. & the case of Cattle v. Haddox'. reporled in 14 Eng. Enc. Law, 2d ed. p. 92. "An action for Neb. 59: “Where a bill of exceptions puralimony cannot be maintained by the husband porting to contain all the testimony is sub. against the wife.” Somers v. Somers, 39 Kan.mitted to the adverse party for amendment, 132; Nelson, Div. & Sep. $ 904.

and such party certifies that he has no amendUnless allowed by our statute, the husband / ments to propose to the osame, the court will could recover no alimony. It is argued that presume that such bill contains all the eviby virtue of the provisions of $ 10, chap. 25, dence, notwithstanding the certiticate may not Comp. Stat. 1895, entitled Dirorce and Ali- fully so certify.” But in Missouri P. R. Co.v. mony, the right to recover alimony was con- Hays, 15 Neb. 231, it was stated: “Wbere all ferred upon the husband. The section reads of the evidence used on a trial is not before us as follows: “A petition or bill of divorce, ali- we cannot say that the finding was unsupmony, and maintenance may be exhibited by ported. It is true that the certificate to ibe a wife in her own name, as well as a busband; bill of exceptions is to the effect that it is comand in all cases the respondent may answer plete and contains all the evidence produced such petition or bill without oath; and in all on the trial. But we find within the bill itself, cases of divorce, alimony, and maintenance, in the questions and answers especially, inconwhen personal service cannot be bad, service testable proof that it does not. Where such by publication may be made as is provided by is the case the certificate will not be taken as law in other civil cases under the Code of Civil conclusive on that point.” In the bill of exProcedure.” Before the enactment of this sec- ceptions we find the following statement: tion a wife was obliged to commence the ac- “Plaintiff now reads in evidence depositions of tion by a representative, by ber next friend, Aaron Kisselbach, Euphrennia Cramer, Fanny and the evident intent of the enactment was to C. Widenor, Nicholas Harris, Howard Barallow her to commence the suit in her own

The depositions which the recname, without the interposition of a “next ord refers to are not in the bill of exceptions, friend," and the addition of the words as well and where the fact that evidence was used as a husband” was meant to and does convey which is not incorporated in the record apno other meaning than that the wife may com- pears, as it does here, it must be noticed, notmence an action in the same manner as a hus. withstanding the certificate to the bill and the band; and they do not reach back and connect presumption arising from the indorsement of with the words “alimony and maintenance," counsel herein before quoted. and, where the and confer upon the husband the right-to ali- bill does not contain all the evidence used on mony and maintenance in an action of divorce, the trial, the objection that the finding and either of which, unless given by this section, decree of the trial court are not supported by he could not obtain in the action. The words the evidence cannot be considered. That it were but used as a part of the description of would not be fair or right to do so is too apparthe action which the lawmakers gave the wife ent to need argument in its support. Ca the right to institute in her own name. It berlain v. Broun, 25 Neb. 434; Aspinwall v. would be a strained construction which would Sabin, 22 Neb. 73; Nelson v. Jenkins, 42 Neb. give them the force of raising in the husband 133. The record before us does not disclose the new right to obtain alimony and mainte. any objection made to the litigation of the nance in an action of divorce. Wood v. Wood, question of the appellee's rights, if any, in the 8 Wend. 357. The rights of the appellee to re- property, in this, an action of divorce. The ceive any of the property, then, could not be question was presented by the pleadings, and, predicated upon his claim for alimony and as shown in the record, was fully submitted maintenance, but must be derived from such to the trial court; hence we need express no equities as accrued in his favor from the man opinion on it at present. Somers v. Somers, 39 ner of the original purchase of the property Kan. 132; Sherwin v. Gaghagen, 39 Neb. 238, and the subsequent improvement thereof, and and cases cited. his participation therein and contributions It is urged by counsel for the appellee tbat thereto. In relation to this branch of the case, the appeal from the branch of the case in reit is asserted by appellant that there is no evi- spect to the property by the appellant presents dence, or at least not sufficient evidence, to the whole decree here, and that the action of

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the trial cour:, in any and all particulars, is successful in the portion of the decree sought open to examination and reversal or modifica. to be attacked by the opposing party, it will tion at the instance of either party to the cause; suffice to say that it has developed that the evi. and be further contends that there was not dence is not all contained in the bill of excepsufficient evidence to sustain the findings tions, and hence tbe question of the sufficiency made, on wbich is based the decree of divorce of the evidence to support the findings of the in favor of appellant. Without discussion or trial court is not open to consideration. decision of the presentation of this subject at It follows from the views hereinbefore exthis time, in an appeal which in terms was pressed, and the conclusions reached, that the limited to one branch of the case by the party decree of the District Court will be affirmed.

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MISSOURI SUPREME COURT (In Banc).
Agnes FUCIIS, Appt.,

constant duty of inspection so that the pipes

may be kept in proper condition. City of ST. LOUIS et al., Respts. Lee v. Vacuum Oil Co. 54 Hun, 157.

The chief of the fire department is an officer (133 Mo.

of the city designated by the charter, and is 1. The fact that gases form from crude the agent of the city in all matters connected

petroleum oil upon its subjection to heat will with his department, including the inspection be judicially noticed by the courts.

of all buildings which are in the course of con.

struction. 2. The fact that a sewer blows up is enti

Scheme and Charter, Rev. Stat. 1889, art. tied to consideration upon the question of care

4, $$ 11, 2134. on the part of a municipality in respect to its

There is also a sewer commissioner of the management.

city. 3. The jury must be permitted to pass id. Rev. Stat. 1889, art. 4, S$ 36, 2109. upon the question of due care by a muni

Both of these oflicers were required by the cipal corporation which in midsummer turns a charter to devote their entire time to the duties large quantity of crude petroleum into a public of their respective positions. sewer the naturai outlet of which is obstructed, and leaves it four days without taking any pre

Id. Rev. Stat. art. 4, $$ 11, 2134. cautions to avoid a resulting explosion.

The municipality is liable like any individual 4. An oil company from whose premi. for the negligent use of its property. ses crude petroleum escapes during a

Flori v. St. Louis, 3 Mo. App. 231, 69 Mo. conflagration not shown to be due to its pegli. 341, 33 Am. Rep. 504; Carrington v. St. Louis, yence is not liable for injuries caused by an 89 Mo. 212, 58 Am. Rep. 108. explosion of a public sewer into which the oil The duty of a city to keep its sewers in was turned by the municipal authorities after it proper condition is a ministerial one, and for bad left the premises of the oil company and its breach an action will lie at the instance of without its knowledge, for the purpose of check the injured party. ing the spread of the conflagration.

2 Dill. Mun. Corp. 3d ed. $ 1019, and cases (Sherwood, Burgess, and Robinson, JJ., dissent.)

cited: Thurston v. St. Joseph, 51 Mo. 510, 11

Am. Rep. 463; Fink v. St. Louis, 71 No. 52; (May 28, 1895.)

Smith v. Nein York, 66 N. Y. 295; Gilluly v.

Madison, 63 Wis. 518, 52 Am. Rep. 299: kranz the Circuit Court for the City of St. Frostburg, 68 Md. 100. Louis in favor of defendants in an action brought to recover damages for the death of maintaining it and keeping it in proper con

A sewer having been constructed, the duty of plaintiff's busband, wbich was alleged to dition and repair is ministerial, and any violahave been caused by defendant's negligence. tion or negligent performance of this duty Reversed as to the city. Affirmed (18 to the

will render the city liable for damages resuli. other defendant,

ing therefrom. The facts are stated in the opinion. Messrs. Lubke & Muench, for appellant: cited in note 1.

6 Am. & Eng. Enc. Law, p. 28, and cases The state has recognized the business of

There was sufficient evidence to connect the handling petroleuin and its products to be dan Waters-Pierce Oil Company as a principal with gerous to human life, and bas put it under the wrong here complained of. That comregulation by providing for the appointment of inspectors commonly known as coal oil was being carried off into the sewer for the

pany owned the dangerous article and knew it inspectors.

better protection and preservation of the comRev. Stat. 1889, chap. 8, § 1323; St. Louis

pany's other property. It received directly County Cl., Jenke, v. Fassett, 65 Mo. 418. When the safety of human life is in question tort feasor with the city.

ihe benefit of the wrong done and is a joint a high degree of care is required in conducting a business in itself lawful. And when in that Chapman, 7 Mo. 17); Puge v. Freeman, 19

Cooley, Torts, 1st ed. 127, 136; Canifar v. business pipes are used to carry oil there is a Mo. 421; Allred v. Bray, 41 Mo. 484, 97 Am. NOTE.- As to negligence in the manufacture or

Dec. 283; McMannus v. Lee, 43 Mo. 206, 97 storage of explosives, seo Judson v. Giant Powder Am. Dec. 386; Murphy v. Wilson, 44 Mo. 313. ('0, (Cal.) 29 L. R. A. 718, and note.

100 Am. Dec. 290.

y : ; Hitchins Bros. v.

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Messrs. C. P. Johnson and J. D. John- ! engines were throwing streams of water on the son,' for respondent, Waters-Pierce Oil Com burning buildings, large quantities of oil and pany:

water ran from the premises of the oil comThe instruction for a nonsuit in favor of papy, and spread out among the railroad the Waters-Pierce Oil Company was correct, tracks adjoining. Then a gang of laborers unbecause:

der direction of the chief of the St. Louis 1. There was no evidence that it was guilty tire department, dug a trench among the railof the negligence charged in the petition. road tracks, and by that means conducted the

Hoag v. Lake Shore & M. S. R. Co. 85 Pa. oil and water into a drain leading to the Mill 293, 27 Am. Rep. 653; Sira v. Wabash R. Co. Creek sewer. This oil was not burning at the 115 Mo. 127; Wabash, St. L. & P. R. Co. v. time. The men who did this were pot on the Locke, 112 Ind. 404; Cooley, Torts, 2d ed. 73. premises of the oil company, and no officer of

2. It does not appear that the oil wbich was that company present was seen or beard to run into the sewer occasioned the explosion. give them any directions concerning the prose

Mr. W. C. Marshall for respondent, city cution of the work, nor was it shown that the of St. Louis.

workman were in the employ of the oil com

pany. Nor was the sewer inlet into which this Barclay, J., delivered the following opin-oil was conducted on the premises of the oil ion:

company. How much oil ran into the sewer This action was brought under the damage does not clearly appear. But the amount act (Rev. Stat. 1889, chap. 49, SS 4426, 4427) io was, at least, 300 or 400 gallons, Four days recover for the death of Mr. Carl E. Fuchs. after the fire the explosion occurred, sbortPlaintiff is his widow, and charges that his ly after 4 P. M.

The immediate cause was death was occasioned by the wrongful act or the act of an employee of a shop on the neglect of the defendants, which charge the de- opposite side of the street from the saloon, who fendants deny. The defendants are the city of went into the cellar in the course of his busiSt. Louis and the Waters-Pierce Oil Company. ness, taking a lighted candle. As he apThe case came to trial in the circuit court in proached the drain or sewer inlet, there was a St. Louis.

At the close of the testimony in- puff of flame, and an explosion, wbich knocked structious were given to the effect that plaintiff bim off his feet, stunned him, and set fire to could not recover against either defendant. I his clothes. He remembered nothing more for Plaintiff took a nopsuit, with leave, etc., and some time thereafter, but another man near having, without result, duly moved to set it him took up the story at that point, and testiaside, brought the case here by appeal, after fied that the big explosion (which demolished the customary exceptions preserving her case part of ihe saloon) occurred before you could for review. The plaintiff's husband was killed count ten, after the mishap to the man with by the explosion of a public sewer which was the candle. The final explosion made a noise in the possession and control of the city. The like a cannon, as one witness described it. It question presented by this appeal is whether tore open the top of the sewer for a long disthe facts tend to show a liability for that mis- tance, and, among other damage, blew out fortune, as to either one of the defendants. part of the saloon building, and killed the Mr. Fuchs had for many years owned a build- plaintiff's busband. The drain opening into ing on the east side of Fourth street, between ibe cellar where the explosion originated conChouteau avenue and Convent street. In July, nected with the Mill Creek sewer. 1892, he occupied the lower floor and cellar of ence of a large body of oil in the sewer at the this building as a place of business, where he time and place of the catastrophe was estabconducted a saloon. The house stood over a lished by the testimony of a witness who was public sewer, built there by the city before he sitting at a table in the saloon with Mr. Fuchs acquired the property in 1884. The house was when the explosion took place. This witness built in that year. The sewer was called the was thrown into the sewer, and swept down in "Mill Creek Sewer.” It was a large one, con- it a distance of several hundred feet, but was structed and maintained by the city. It was fortunate enough to escape alive. His evidence used to drain an extensive territory, as well as showed the presence also of much coal-oil gas to carry off the surface water and sewage from in the sewer while he was in it. There was the public buildings in the central part of the evidence that the conflagration at the oil works city, including the city hall, the “Four Courts,” | was large, and attracted general public atten. and the jail. The sewer extended from the tion. A gas engineer, of many years' experi. west beneath and across Broadway (or Fifth ence in manufacturing gases from petroleum street) and Fourth street, underneath and and its products, testitied for plaintiff that across Mr. Fuchs' lot; and thence eastwardly, crude petroleum, exposed to a temperature of a distance of about four blocks, to the Missis- 60 degrees Fahrenheit, in a confined space, sippi river, its outlet. The sewer was pro- gives off inflammable vapors or gases, which vided with several closely covered openings or will explode when brought into contact with manholes, which were available for ventilating tlame; ibat naphtha is one of the first products it. Several of these manholes were located of the distillation of the crude petroleum, and along the line of the sewer near the saloon is lighter, and the like vapors will form from property, one of them a short distance west of it speedier tban from the crude oil in the same it. The sewer was about 14 feet in diameter, temperature; that these vapors or gases are had an arched top and was built chiefly of lighter than the air, and rise, and, although masonry. July 22, 1892, about uoon, a fire not combustible spontaneously, will explode so broke out on the premises of the Waters-Pierce soon as a flame comes in contact at any point Oil Company, located some ten blocks west, with the gas. The evidence also indicated that and two or three blocks north, of the saloon. the outlet of the sewer at the river was stopped While the fire was in progress, and the city firel up by reason of the high stage of water.

The pres

not re

There was evidence to show that some of the thing itself speaks.” Had the cover of the large manholes or iplets to this sewer in the large opening west of the saloon been revicinity of the saloon were not opened after moved, so as to allow the direct escape of the the oil ran into the sewer, and that the cover gas at that point, it may be that the disaster of a manhole in the street west of the saloon would have been avoided. It was was thrown into the air by the explosion, and moved; por do any other steps appear to have broken in pieces. The death of the plaintiff's been taken in regard to the care of the sewer husband occurred July 26, 1892, the day of the by the city authorities after the flow of the oil disaster, and this suit was instituted on Sep into it on the 22d of July. It is not always tember 16th following.

consistent with common prudence to await a 1. The first question is whether the case catastrophe before taking precautions against should have gone to the jury on the issue of it. Nor is it conclusive of careful management negligence on the part of the city. Irrespective that a particular disaster has never before ocof any inquiry as to the capacity or construc- curred. It is often an essential part of reasontion of the sewer, it is settled law in Missouri able care to guard against those performances that a city is liable for any omission of reasona- which men of ordinary prudence would ble or ordinary care in the management of such naturally and reasonably anticipate in dealing a properly. What is ordinary care depends with such dangerous agencies as science has very greatly on the facts and circumstances of contributed to our highly complex civilization. each particular case. Iu determining what To what extent such foresight is demanded by care of property is reasonable, its situation and the duty to use ordinary care it would be very the objects of its use should be considered. difficult to say. We shall not attempt to Here was a large sewer, which ran under busi- generalize on that topic now; and, as the cause ness buildings in a populous part of the city, at bar should be brought to another trial, we do and the sewer exploded in the circumstances not propose to go into any further comment on described. There is not, by the way, the the facts than seems needful to indicate our slightest claim or suggestion of any negligence general view as to their probative force and on the part of the deceased. That a large body tendency. It appears to us, on the testimony of inflammable oil had entered the sewer, be submitted, that it cannot be declared as a concause of the fire at the oil works, was a fact clusion of law that the city fully performed which the jury might naturally bave inferred the full measure of its duty in respect of the the city had notice of, after a lapse of four days, sewer property; and hence that the learned trial as also of the high water in the Mississippi judge erred in givivg the instruction which river prevailing at that time, preventing a free denied plaintiff the right to go to the jury for a discharge of the contents of the sewer in that finding of fact as to the alleged negligence of direction. The fact that gases form from such the city. oils upon subjection of the latter to heat is a 2. Touching the charge against the oil commatter of ordinary scientific knowledge, of pany, there is no evidence as to the origin of which courts will take judicial notice. It was, the fire at the works, nor any evidence of any moreover, testified to as a fact in the case be want of care on the part of the company in refore us.

In view of the conditions existing at gard to the flow of oil into the sewer. That the time of the disaster, what was the duty of flow was caused by the direction of the chief the city, or rather, what fair inferences may be of the city fire department for the purpose of drawn (from the fact of the explosion and its averting the danger of spreading the contlagracircumstances) as to the performance or non- tion. The oil company was not responsible performance by the city of the duty of ordinary for that action on the facts shown, nor was it care towards its citizens living along the line responsible for the care of the public sewer of the sewer? It is in evidence that the which exploded four days later. large vent or manhole in the street, just west We conclude that the ruling and finding is of the saloon, was tightly covered during to the oil company should be affirmed; but 118 the four days from the tire to the explosion, to the city the judgment is recersed and the and that, when the latter occurred the cause remanded for a new trial. iron cover of that opening, about 3 feet in diameter, was thrown a great distance Macfarlane, J., concurs in the result.

Brace, Ch. J., and Robinson, J., concur. by the force of the shock. The time summer,--the latter part of July;

The cause having been transferred to the nothing whatever appears to bave been done by the city authorities, so far as this evidence opinion was handed down:

court in banc on March 3, 1896, the following indicates, towards averliug the effects likely to follow the escape of such a large body of vola- Per Curiam: tile oils into a sewer whose natural outlet was The foregoing opinion of Barclay, J., banded obstructed by the high water in the river, as down in division No. 1, is adopted as the stated. All the facts which made the sewer opinion of the court in banc, Brace, Ch. J., dangerous might fairly have been found to be and Gantt and Macfarlane, JJ., concurring within the knowledge of the city officials after therein with him; Sherwood, Burgess, and the lapse of time following the fire. Vander. Robinson, JJ., dissenting. Accordingly the slice v. Philudelphia (1883) 103 Pa. 102. Care judgment of the circuit court is affirmed (18 to fully managed sewers do not, according to the the Water& Pierce Oil Company, and 18 common experience of men, usually blow up tersed and remanded for neio trial as to the city and scatter destruction and death. Such a of St. Louis. performance is of itself entitled to considera. tion, on the issue of care in respect of such Sherwood, J., dissenting: property; or, as some jurists have said, “the Action by plaintiff, the widow of Carl E

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