The instruction for a nonsuit in favor of the Waters-Pierce Oil Company was correct, because:

1. There was no evidence that it was guilty of the negligence charged in the petition. Hoag v. Lake Shore & M. S. R. Co. 85 Pa. 293, 27 Am. Rep. 653; Sira v. Wabash R. Co. 115 Mo. 127; Wabash, St. L. & P. R. Co. v. Locke, 112 Ind. 404; Cooley, Torts, 2d ed. 73. 2. It does not appear that the oil which was run into the sewer occasioned the explosion. Mr. W. C. Marshall for respondent, city of St. Louis.

Barclay, J., delivered the following opin

ion:

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 company, and spread out among the railroad tracks adjoining. Then a gang of laborers under direction of the chief of the St. Louis fire department, dug a trench among the railroad tracks, and by that means conducted the oil and water into a drain leading to the Mill Creek sewer. This oil was not burning at the time. The men who did this were not on the premises of the oil company, and no officer of that company present was seen or heard to give them any directions concerning the prosecution of the work, nor was it shown that the workman were in the employ of the oil company. Nor was the sewer inlet into which this oil was conducted on the premises of the oil company. How much oil ran into the sewer does not clearly appear. But the amount was, at least, 300 or 400 gallons. Four days after the fire the explosion occurred, shortly after 4 P. M. The immediate cause was the act of an employee of a shop on the opposite side of the street from the saloon, who went into the cellar in the course of his business, taking a lighted candle. As he approached the drain or sewer inlet, there was a puff of flame, and an explosion, which knocked bim off his feet, stunned him, and set fire to his clothes. He remembered nothing more for some time thereafter, but another man near him took up the story at that point, and testified that the big explosion (which demolished part of the saloon) occurred before you could count ten, after the mishap to the man with the candle. The final explosion made a noise like a cannon, as one witness described it. It tore open the top of the sewer for a long distance, and, among other damage, blew out part of the saloon building, and killed the plaintiff's husband. The drain opening into the cellar where the explosion originated connected with the Mill Creek sewer. The presence of a large body of oil in the sewer at the time and place of the catastrophe was established by the testimony of a witness who was sitting at a table in the saloon with Mr. Fuchs when the explosion took place. This witness was thrown into the sewer, and swept down in it a distance of several hundred feet, but was fortunate enough to escape alive. His evidence showed the presence also of much coal oil gas in the sewer while he was in it. There was evidence that the conflagration at the oil works was large, and attracted general public attention. A gas engineer, of many years' experience in manufacturing gases from petroleum and its products, testified for plaintiff that crude petroleum, exposed to a temperature of 60 degrees Fahrenheit, in a confined space, gives off inflammable vapors or gases, which will explode when brought into contact with flame; that naphtha is one of the first products of the distillation of the crude petroleum, and is lighter, and the like vapors will form from it speedier than from the crude oil in the same temperature; that these vapors or gases are lighter than the air, and rise, and, although not combustible spontaneously, will explode so soon as a flame comes in contact at any point with the gas. The evidence also indicated that the outlet of the sewer at the river was stopped up by reason of the high stage of water.

This action was brought under the damage act (Rev. Stat. 1889, chap. 49, § 4426, 4427) to recover for the death of Mr. Carl E. Fuchs. Plaintiff is his widow, and charges that his death was occasioned by the wrongful act or neglect of the defendants, which charge the defendants deny. The defendants are the city of St. Louis and the Waters-Pierce Oil Company. The case came to trial in the circuit court in St. Louis. At the close of the testimony instructions were given to the effect that plaintiff could not recover against either defendant. Plaintiff took a nonsuit, with leave, etc., and having, without result, duly moved to set it aside, brought the case here by appeal, after the customary exceptions preserving her case for review. The plaintiff's husband was killed by the explosion of a public sewer which was in the possession and control of the city. The question presented by this appeal is whether the facts tend to show a liability for that misfortune, as to either one of the defendants. Mr. Fuchs had for many years owned a building on the east side of Fourth street, between Chouteau avenue and Convent street. In July, 1892, he occupied the lower floor and cellar of this building as a place of business, where he conducted a saloon. The house stood over a public sewer, built there by the city before he acquired the property in 1884. The house was built in that year. The sewer was called the "Mill Creek Sewer." It was a large one, constructed and maintained by the city. It was used to drain an extensive territory, as well as to carry off the surface water and sewage from the public buildings in the central part of the city, including the city hall, the "Four Courts," and the jail. The sewer extended from the west beneath and across Broadway (or Fifth street) and Fourth street, underneath and across Mr. Fuchs' lot; and thence eastwardly, a distance of about four blocks, to the Mississippi river, its outlet. The sewer was provided with several closely covered openings or manholes, which were available for ventilating it. Several of these manholes were located along the line of the sewer near the saloon property, one of them a short distance west of it. The sewer was about 14 feet in diameter. had an arched top and was built chiefly of masonry. July 22, 1892, about noon, a fire broke out on the premises of the Waters-Pierce Oil Company, located some ten blocks west, and two or three blocks north, of the saloon. While the fire was in progress, and the city fire

There was evidence to show that some of the large manholes or inlets to this sewer in the vicinity of the saloon were not opened after the oil ran into the sewer, and that the cover of a manhole in the street west of the saloon was thrown into the air by the explosion, and broken in pieces. The death of the plaintiff's husband occurred July 26, 1892, the day of the disaster, and this suit was instituted on September 16th following.

thing itself speaks." Had the cover of the large opening west of the saloon been removed, so as to allow the direct escape of the gas at that point, it may be that the disaster would have been avoided. It was not removed; nor do any other steps appear to have been taken in regard to the care of the sewer by the city authorities after the flow of the oil into it on the 22d of July. It is not always consistent with common prudence to await a catastrophe before taking precautions against it. Nor is it conclusive of careful management that a particular disaster has never before occurred. It is often an essential part of reasonable care to guard against those performances which men of ordinary prudence would naturally and reasonably anticipate in dealing with such dangerous agencies as science has contributed to our highly complex civilization. To what extent such foresight is demanded by the duty to use ordinary care it would be very difficult to say. We shall not attempt to generalize on that topic now; and, as the cause at bar should be brought to another trial, we do not propose to go into any further comment on the facts than seems needful to indicate our general view as to their probative force and tendency. It appears to us, on the testimony submitted, that it cannot be declared as a conclusion of law that the city fully performed the full measure of its duty in respect of the sewer property; and hence that the learned trial judge erred in giving the instruction which denied plaintiff the right to go to the jury for a finding of fact as to the alleged negligence of the city.

That

2. Touching the charge against the oil company, there is no evidence as to the origin of the fire at the works, nor any evidence of any want of care on the part of the company in regard to the flow of oil into the sewer. flow was caused by the direction of the chief of the city fire department for the purpose of averting the danger of spreading the conflagration. The oil company was not responsible for that action on the facts shown, nor was it responsible for the care of the public sewer which exploded four days later.

1. The first question is whether the case should have gone to the jury on the issue of negligence on the part of the city. Irrespective of any inquiry as to the capacity or construction of the sewer, it is settled law in Missouri that a city is liable for any omission of reasonable or ordinary care in the management of such a property. What is ordinary care depends very greatly on the facts and circumstances of each particular case. In determining what care of property is reasonable, its situation and the objects of its use should be considered. Here was a large sewer, which ran under business buildings in a populous part of the city, and the sewer exploded in the circumstances described. There is not, by the way, the slightest claim or suggestion of any negligence on the part of the deceased. That a large body of inflammable oil had entered the sewer, because of the fire at the oil works, was a fact which the jury might naturally have inferred the city had notice of, after a lapse of four days, as also of the high water in the Mississippi river prevailing at that time, preventing a free discharge of the contents of the sewer in that direction. The fact that gases form from such oils upon subjection of the latter to heat is a matter of ordinary scientific knowledge, of which courts will take judicial notice. It was, moreover, testified to as a fact in the case before us. In view of the conditions existing at the time of the disaster, what was the duty of the city, or rather, what fair inferences may be drawn (from the fact of the explosion and its circumstances) as to the performance or nonperformance by the city of the duty of ordinary care towards its citizens living along the line of the sewer? It is in evidence that the large vent or manhole in the street, just west of the saloon. was tightly covered during the four days from the fire to the explosion, and that, when the latter occurred the iron cover of that opening, about 3 feet in diameter, was thrown a great distance by the force of the shock. The time was summer, the latter part of July; yet nothing whatever appears to have been done by the city authorities, so far as this evidence indicates, towards averting the effects likely to follow the escape of such a large body of volatile oils into a sewer whose natural outlet was The foregoing opinion of Barclay, J., handed 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. Philadelphia (1883) 103 Pa. 102. Care-judgment of the circuit court is affirmed as to fully managed sewers do not, according to the the Waters-Pierce Oil Company, and 28 rccommon experience of men, usually blow up versed and remanded for new trial as to the city and scatter destruction and death. Such a of St. Louis. performance is of itself entitled to consideration, on the issue of care in respect of such property; or, as some jurists have said, "the

We conclude that the ruling and finding as to the oil company should be affirmed; but as to the city the judgment is reversed and the cause remanded for a new trial.

Macfarlane, J., concurs in the result.
Brace, Ch. J., and Robinson, J., concur.

The cause having been transferred to the court in banc on March 3, 1896, the following opinion was handed down:

Per Curiam:

Sherwood, J., dissenting:

Action by plaintiff, the widow of Carl E

That the smell was different from the ordinary | about 800 feet. There he encountered water gases from the gas works. That the manhole from 5 to 6 or 7 or 8 feet deep. That in the at the intersection of Broadway and Fourth street was about 100 to 150 feet west of the store. That he knew of no manholes in the sewer east of Fourth street. That after the the explosion he saw flat cars, which had fal len into the opening of the sewer which was constructed under the property before his father bought it or built on it, and since that time no repairs on the sewer east of Broadway had been necessary. That there was a slight current to the water in the sewer the day of the accident, but the mouth of the sewer was blocked up by the river. That there was only one sewer inlet at the north end of Market at the junction of Fourth and Fifth streets, and one at the southwest corner of Broadway and Chouteau avenue. That the one at the north end of the Market was reconstructed, and it was made of clay pipe, with a goose neck to it, to prevent the escape of gases into the open air. This was done at the instance of the people in the neighborhood, who complained of the gases and odors thus escaping. That the inlet at the corner of Chouteau avenue and Broadway is intended to drain the surface water from the streets.

sewer were "sawdust and muck and petroleum and coal oil, and everything else that you could think of that was nasty." That there was a little current, enough to carry him along, but none right where the débris from the house dammed up the sewer. That there was a large amount of sawdust in solution, and general muck, more like molasses or tar or something of that kind. That petroleum is a thick fluid, like tar; and that there was coal oil on top of the water. This he recognized in the darkness of the sewer. That there was "gas, either from petroleum or whatever it was that blew up the sewer." "That the explosion didn't ignite all the gas in the sewer. That there were other odors there besides that of gas. That witness was compelled to hold his nose, and get under the water, to keep from being asphyxiated with the gas, which was just like needles going up into his nose.' That the defendant oil company's works were located alongside of the Mill Creek sewer, between Twelfth and Fourteenth streets, on the Pacific Railroad; and that this was the only oil mill on that sewer.

Two hours after the occurrence of the exploFollenius, whose marble works were located sion, another witness, Dr. Bowler, who was in at 508 and 510 Chouteau avenue, and who had the second story of the Fuchs building when occupied those premises for about twenty-two it occurred, states that a characteristic pungent years, and who had been familiar with the lo- smell was noticeable arising from the opening cality for some twenty-eight years, testified in the sewer, such as usually arises from that he remembered the fire which occurred sewers; that after the explosion there was at the oil company's, works on Thursday, the smoke or vapor arising from the sewer, indi22d of July. There was a manhole at the cor cating that there had been fire or combustion ner of Broadway and Chouteau avenue, on the in the sewer, and that the gas had been conwest side of the latter. That on Sunday (next sumed; that the ordinary gas which accumubefore the Monday, the 26th of July, on lates in sewers from decaying vegetable or which the explosion occurred), his place hav- animal matter is explosive when ignited under ing connection with the sewer he observed a certain conditions; that the density of the gas peculiar smell from the sewer. That it seemed would have to be sufficient, and also sufficient as though mixed with sewer gas and coal oil, heat to produce the explosion; that, if all the which was different from the sewer gas smells conditions were favorable, you would get which were there most all the time. That he spontaneous combustion or explosion by igniwas seated at his desk when the explosion oc- tion,-that is, applying a light to the accumucurred, and after that went out into his yard, lated gas; that sewer gas may explode, under which looked as if it had been plowed up with certain conditions, without the presence of pe a large plow. That large holes were blown troleum; that he understood the process of in the top of the sewer 3 or 4 feet over, from manufacturing gas from crude petroleum, which issued an odor like he had noticed the which, and coal oil, are explosive when subday before. That the shock threw the lid off ject to a certain degree of heat; and that under the manhole at the corner, and on going east-favorable conditions either of the gases menward he noticed the same kind of odor issuing tioned might explode spontaneously. at the southeast corner of Broadway and Chouteau avenue; also east of the Fuchs building; and that the smell was unlike coal gas, and different from any smell that had come from the sewer before. That the odors that came from the manhole at the southeast corner of Broadway and Chouteau were there before the sewer was built, but since its building could only be detected on a cloudy, rainy day. He further testified that he saw a colored mass mixed with the dirty water that was flowing down the sewer, of a kind of violet color, but could not say whether it was oil.

Tunstal, another witness, was in the back room of the building when the explosion took place, and Fuchs and Kriebaum were in there with him, and by that explosion he was cast into the sewer, and from which he got out after struggling in the stream a distance of

Schneider, who lived in the next door south of Fuchs, testified: That there were two manholes in the Mill Creek sewer at the junction of Fourth and Fifth streets (the latter of which is usually called Broadway),-one in the middle of the street and the other on the sidewalk on the west side of the street,-and they were kept closed with solid covers. That there were two other openings to the sewer,—one on the corner, and one right in front of the Market,-which were made for water to flow into; and two openings of usual size to the sewer, also open, covered with grates, in the alley, 144 feet east of the Fuchs property, right behind the property of witness. These openings in the alley are to a sewer connected with the main sewer. That on the evening of the day of the fire (which occurred just a little after noon) the smell from the sewer of

Kuntz, a plumber, testified that seven or eight years ago he connected the premises of the Waters-Pierce Oil Company with the Mill Creek sewer at a point on Gratiot street opposite Thirteenth, to drain their yard; that there was a grating at the junction of Fourth and Fifth streets over the main sewer, to let the water flow in.

coal oil was so strong in his house that they | matter of how gases originate that are formed had to close the windows. That his sewer in a sewer. That gases arise by evaporation. connects with the Mill Creek sewer. That They are not made that way, but are produced each succeeding night it was the same way, that way by simple evaporation. That some and they could not stand it in the rear of the of the constituents of the oil would evaporate. house, and had to go to the front, because of That this was the case with all kinds of oil this smell of coal oil. There was always some from crude petroleum down to naphtha,-gasoodor coming from the sewer, but not so strong line. That illuminating oil that is sold as as at the time mentioned. That the odor was kerosene would not give off any vapor under much stronger after the fire than before. ordinary temperature, nor would it produce That since the manholes on Fourth and Fifth any gas. I have tried that may times." That streets had covered tops they did not suffer so if you poured such oil on the floor, with a much from the odor. That the branch sewers lighted candle in the room, the oil would not affording connection from his house with the take fire. That it only explodes or burns by Mill Creek sewer had no self-acting safety contact. That crude petroleum gives off a cocks to shut off odors from the sewer in the vapor under ordinary temperature; that is, any yard. temperature over 60 Fahrenheit, which is inflammable by coming in contact with fire. That it cannot be called a gas, but is a vapor. That if you filled a large vessel with crude petroleum, and put it in a closed room, after a time. depending on the atmosphere, there would be gas enough in the room to make it dangerous to go in there with a light. That there would have to be a great deal of ventilation in a room to prevent it being danger. ous. "I would be afraid of it even in any case. That he had given the question of the construction of sewers in a city no attention. That naphtha is one of the first products of distillation of petroleum, and is a very light oil, and vapors form from it much quicker than they would from petroleum alone. That gasoline is the same as naphtha only a little lighter grade. Asked whether sewer gas or marsh gas would not ignite or burn spontaneously, witness said that the former would not, and that ordinary gas would not, to his knowledge. That it would take a very large quantity of crude petroleum to generate enough vapor to cause Mill Creek sewer to explode. That when he spoke of oil evaporating at a temperature of 60, he referred to oil in an open vessel; such a one as would admit of air. That from his general reading he knew that there was a constant generation of gases from

Hartung, reporter, testified: That he was present at the time the fire of the oil company's works occurred, and was there some three hours. That he saw men who wore overalls, and were laborers, who were acting under the command of Lindsay, chief of the fire department, digging trenches in among the railroad tracks, and thus conducting the oil and water (which was in large quantities in the ground, from 5 to 12 inches deep) to the public sewers. That these men at work were about 15 feet north of the oil company's plant. That it was impossible to tell the proportions of the flowing water and oil. That the men were not firemen. That while the works of the oil company were furiously burning, the oil from the works ran out on the ground and among the railroad tracks on which the cars were standing. That he asked Chief Lindsay "whether there was any danger from that oil that was scattered among the tracks catching fire and damaging the railroad property, and he said,│animal and vegetable matter, and was called 'No,' he thought not; that the men were leading it into those inlets; and I heard him say, 'Move along,' 'Is it hot?' and questions of that sort." That there was no way to prevent the oil, etc., from escaping and going northward into the Union Depot yards, where there were cars standing, except by turning it into the sewers. That the fire department was playing on the fire at the time the works were burning, That one of the officers of defendant company stated to him that there was naphtha in some of the company's tanks. This witness also testified that there were 300 or 400 gallons of oil flowed into the sewers, and then, after that, 3.000 or 4,000 gallons; and then said he could not estimate the quantity, as he could not tell how thick the oil was on the surface of the

sewer gas," which is a mixture of gases. That there is a mixture of sulphureted hydrogen, and maybe some marsh gas. That marsh gas emanates frem decaying vegetable matter. That witness believed that it was common in sewers. That the conditions were favorable to it, and that the conditions were more favorable to sulphureted hydrogen being in sewer gas, and more so than ordinary marsh gas. That gas is generated in sewers from human excrements, rotting vegetables, and animal matter. That explosions from sulphureted hydrogen or marsh gas would be about the same in their violence as gas from petroleum vapors. That in the opinion of witness, if the explosion had resulted from crude petroleum or other cause, such sudden ignition would have raised the temperature to about 2.200, and the heat would have ignited and burned any petroleum in the sewer at the time, and would have ignited the petroleum more readily on the surface of the water than if lying on a dry surface. This witness could not state what the Enger, a gas engineer, who had twenty-one temperature of the sewer was. That tank cars years' experience in making gas from petro-containing hundreds of barrels of oil are conleum and its products, had not studied the stantly being transported all over the country

water.

Wilson, a policeman, testified that just as he passed the Fuchs place the explosion occurred; that a dense smoke came out of the building: which resembled the scent which arises after the extinguishment of a gaosline stove.