« ForrigeFortsett »
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 eviand 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 the 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 herein before 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 I decree of the District Court will be affirmed.
MISSOURI SUPREME COURT (In Banc).
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. 168.)
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, $$ 11, 2134. on the part of a municipality in respect to its
There is also a sewer commissioner of the management.
city. 3. The jury must be permitted to pass İd. Rev. Stat. 1889, art. 4, SS 36, 2109. upon the question of due care by a muni
Both of these officers were required by the cipal corporation which in midsummer turns a charter to devote their entire time to the duties large quantity of crude petroleum into a public of their respective positions. sewer the natural outlet of which is obstructed, and leaves it four days without taking any pre
Id. Rev. Stat. art. 4, $$ 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 degli- 341, 33 Am. Rep. 504; Carrington v. St. Louis, gence is not liable for injuries caused by an 89 Mo. 212, 58 Am. Rep. 108. explosion of a public sewer into wbich 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 witbout its knowledge, for the purpose of check- the injured party. ing the spread of the conflagration.
2 Dill. Mun. Corp. 3d ed. $ 1049, 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 Mo. 52; (May 28, 1895.)
Smith v. Nero 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.
, ; Hitchins Bros. v. Louis in favor of defendants in an action
A sewer having been constructed, the duty brought to recover damages for the death of maintaining it and keeping it in proper conof plaintiff's busband, which was alleged to dition and repair is ministerial, and any violahave been caused by defendant's negligence. tion or negligent performance of this duty Rerersed as to the city. Affirmed as to the will render the city liable for damages resultother defendant. The facts are stated in the opinion.
ing therefrom. Messrs. Lubke & Muench, for appellant: cited in note 1.
6 Am. & Eng. Enc. Law, p. 28, avd cases The state has recognized the business of handling petroleum and its products to be dan- Waters-Pierce Oil Company as a principal with
There was sufficient evidence to connect the gerous to human life, and has put it under the wrong here complained of. That comregulation by providing for the appointment pany owned the dangerous article and knew it of inspectors commonly known as coal oil was being carried off into the sewer for the inspectors.
better protection and preservation of the comRev. Stat. 1889, chap. 8, § 1323; St. Louis pany's otber property. It received directly County Cl., Jenks, v. Fassett, 65 Mo. 418. When the safety of human life is in question tort feasor with the city.
the benefit of the wrong done and is a joint a high degree of care is required in conducting
Cooley, Torts, 1st ed. 127, 136; Canifar v. a business in itself lawful. And when in that Chapman, 7 Mo. 175; Page : Freeman, 19 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, see Judson v. Giant Powder Am. Dec. 386; Murphy v. Wilson, 44 Mo. 313, Co. (Cal.) 29 L. R. A. 718, and note.
100 Am. Dec. 290.
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 pany, 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 fire 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. Ř. 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. K. 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 sewerinlet 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) to 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. Dess, 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, which knocked structions were given to the effect that plaintiff bim off his feet, stunned him, and set fire to could not recover against either defendant. 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 testi-aside, brought the case here by appeal, after fied that the big explosion (which demolished the customary exceptions preserving her case part of the 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 bad for many years owned a build- plaintiff's busband. The drain opening into ing on the east side of Fourth street, between the cellar where the explosion originated conChouteau avenue and Convent street. In July, nected with the Mill Creek sewer. The pres1892, 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 attenand the jail. The sewer extended from the tion. A gas engineer, of many years' experiwest beneath and across Broadway (or Fifth ence in manufacturing gases from petroleum street) and Fourth street, underneath and and its products, testified 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 flame; that 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 than 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 noon, 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 fire l up by reason of the high stage of water. 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 not rewas thrown into the air by the explosion, and moved; nor 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 catastropbe 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 property. "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. In 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 wbich 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 giving 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 conflagra. circumstances) 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 as of the saloon. was tightly covered during to the oil company should be affirmed; but as the four days from the fire 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 was summer,-the latter part of July; yet
The cause having been transferred to the nothing whatever appears to bave been done by the city authorities, so far as this evidence court in banc on March 3, 1896, the following indicates, towards averting the effects likely to
opinion was handed down: 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. 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 18 common experience of men, usually blow up rersed and remanded for nei 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 Sherwood, J., dissenting: property; or, as some jurists have said, “the Action by plaintiff, the widow of Carl E Fuchs, deceased, to recoller damages for the and also drained the City Hall and Four death of her husband, caused by the explosion Courts. Fuchs' building was located over this of Mill Creek sewer. The petition, after for sewer, which was built in 1858 or 1859, in the mal and preliminary statements, alleges that most solid and substantial manner, the stones the defendant city had built the sewer, and composing it being very massive, and it ran then proceeds to state tbat a fire broke out on through the lot on which the store building of the premises of defendant the Waters-Pierce Fuchs was situate in a northwesterly and southOil Company on the 22d of July, 1892, where easterly direction and crossed Fourih street and a large stock of oils was stored by that com- Broadway, which converged at that point, and pany; and that such company did cause and were, in consequence of such convergence, permit said oils to escape and run into the some 200 to 300 feet wide at that point. On above-mentioned sewer, fill the same with oil, July 26, 1892, the sewer exploded about 4:25 and generate gases therein, etc. Having made P. M., and in consequence of which Carl E. these allegations, the petition tben avers that Fuchs died on that day. The explosion tore “under a license from the then owners of said out the front of the store, except the iron pillot (referring to the lot afterwards bought by lars; also the rear wall of the entire building, Carl E. Fuchs in May, 1884] the said sewer and the floor of the store; and opened the was by said city constructed and carried under. sewer through the whole length of the buildneath said lot eastwardly towards the said ing, and extended eastwardly between Second river, and that said sewer was located below and Main streets, where the entire top arch of the cellar afterwards caused to be built upon the sewer was thrown out for a distance of said lot by said deceased, Carl E. Fuchs; tbat about 400 or 500 feet. The street west of the when defendant the city of St. Louis obtained store was not disturbed, but the sidewalk on said license from said owners it assumed and the west side of Broadway was torn up, and agreed with the tben owners of said lot and also the property next to it. There were their assigns, and became bound, to keep and covers for the sewer in the middle of the street maintain said sewer in good order, and to care (where Broadway and Fourth street join) opfor the said sewer, so that said lot and any im- posite the store, and another on the west side provements wbich might be put thereon would of Broadway, about 150 feet from the store. be free from danger of injury on account of This cover was blown off,—the one in the said sewer and the use thereof." The petition street west of the store,—an ordinary-sized manthen.concludes thus: “Plaintiff further alleges hole, 3 feet in diameter, with a solid cast-iron that said sewer was provided with openings lid, about 4 of an inch thick. After the exespecially designed to carry off any gases plosion this lid was found broken in pieces, which might arise in said sewer and be liable and the contents of the store, barrels, boxes, to combustion and explosion, and that said bottles, shelving, and woodwork, wood floors, sewer and the openings thereof aforesaid, joists, plaster, and wainscoting were in the on and prior to the said 26th day of July, sewer, through which the water was rushing. 1892, were in the sole care and control There was a substance in the cellar which of defendant the city of St. Louis, its agents looked like an oily mass, and had a gaseous and servants, yet the said city, its agents and smell. The Waters-Pierce Oil Company's servants, knowing that said defendant the place of business was between Gratiot street on Waters-Pierce Oil Company had flooded said the south. Twelfth street on the east, the rail. sewer with oil, neglected to open said vents, road tracks on the north, and Fourteenth street and carelessly and negligently failed to take on the west, and was ten blocks west and two measures and precautions to prevent gases or three blocks north of the Fuchs store, and arising and accumulating in said sewer so as was close to the Mill Creek sewer, where the to endanger the same; and that between the company bad large iron tanks for storing oils, said 22d and 26th days of July, 1892, gases from which they filled sheet-irou wagons for did arise and accumulate in said sewer in great distributing oils to retail dealers in the city, and very dangerous quantities, and on the etc. The floor of the cellar of the Fuchs date last named, and within six months next house was composed of a layer of 2 or 3 inches before the commencement of this suit, ignited of cinders with a cement top, constructed on and exploded with great force, throwing open the arch of the sewer. The sewer was 14 feet said sewer underneath the property of said wide, 12 feet bigb, and with walls 20 to 24 Carl E. Fuchs, shattering his said building, inches thick. At the time of the explosion the and also then and there causing the death of river was very high, and filled the cellars and said Carl E. Fuchs,” etc. The answer was a first floors of the buildings on the levee. A general denial by defendant city as well as by fire occurred at the defendant company's works defendant company.
on July 22d, four days prior to the explosion. The evidence, in substance, so far as neces. The witness giving the foregoing testimony sary to state it, was to this effect: Carl E. was Dr. Fuchs, a son of the deceased. On bis Fuchs, deceased, owned the building on the cross-examination this witness stated: Genereast side of Fourth street, seven or eight doors ally ordinary sewage is dark and greasy-looksouth of Chouteau avenue, and about four ing. That he could not tell wbether any peblocks from the river. This section of the troleum oil was mixed with the water in the city is a valley, and the sewer in question is sewer, but that it had an odor like gas; not like known as “Mill Creek Sewer." This sewer ordinary lighting gas, but a greasy smell like was formerly a creek, and constituted the nat. petroleum or gasoline; something like that; ural drainage of a large portion of the city, though he was not sufficiently versed in cheminto which very numerous smaller sewers istry to tell what kind it was. That the smell emptied, and it drained the property in Mill was not like that emanating from the black Creek valley from Grand avenue eastwardly, I liquid which he had seen taken from sewers. 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 sewer were “sawdust and muck and petroleum street was about 100 to 150 feet west of the and coal oil, and everything else that you could store. That he knew of no manholes in the think of that was nasty.' That there was a sewer east of Fourth street. That after the little current, enough to carry him along, but the explosion he saw flat cars, which bad fal. none right where the débrıs" from the house len into the opening of the sewer which was dammed up the sewer. That there was a large constructed under the property before his amount of sawdust in solution, and general father bought it or built on it, and since that muck, more like molasses or tar or something time no repairs on the sewer east of Broadway of that kind. That petroleum is a thick fluid, bad been necessary. That there was a slight like tar; and that there was coal oil on top of current to the water in the sewer the day of tbe water. This be recognized in the dark. the accident, but the mouth of the sewer was ness of the sewer. That there was "gas, either blocked up by the river. That there was only from petroleum or whatever it was that blew one sewer inlet at the north end of Market at up the sewer.” “That the explosion didn't the junction of Fourth and Fifth streets, and ignite all the gas in the sewer. That there one at the southwest corner of Broadway and were other odors there besides that of gas. Chouteau avenue. That the one at the north That witness was compelled to hold his nose, end of the Market was reconstructed, and it was and get under the water, to keep from being made of clay pipe, with a goose neck to it, to asphyxiated with the gas, which was just like prevent the escape of gases into the open air. needles going up into his nose.” That the deThis was done at the instance of the people in fendant oil company's works were located the neighborhood, who complained of the gases alongside of the Mill Creek sewer, between and odors thus escaping. "That the inlet at Twelfth and Fourteenth streets, on the Pacific the corner of Chouteau avenue and Broadway Railroad; and that this was the only oil mill is intended to drain the surface water from the on that sewer. streets.
Two hours after the occurrence of the exploFollenius, wbose 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 wben 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 manbole at the cor cating that there bad been fire or combustion ner of Broadway and Chouteau avenue, on the in the sewer, and that the gas bad 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), bis place bav. 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, beat 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 maphole 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 Schneider, who lived in the next door south Chouteau avenue; also east of the Fuchs of Fuchs, testified: That there were two man. building; and that the smell was unlike coal holes in the Mill Creek sewer at the junction gas, and different from any smell that bad of Fourth and Fifth streets (the latter of wbich come from the sewer before. That the odors is usually called Broadway),-one in the midtbat came from the manhole at the southeast dle of the street and the other on the sidewalk corner of Broadway and Chouteau were there on the west side of the street,—and they were before the sewer was built, but since its build- kept closed with solid covers. That there ing could only be detected on a cloudy, rainy were two other openings to the sewer,---one on day: He further testified that he saw a col the corner, and one right in front of the Marored mass mixed with the dirty water that was ket,-which were made for water to flow into; flowing down the sewer, of a kind of violet and two openings of usual size to the sewer, color, but could not say whether it was oil. also open, covered with grates, in the alley,
Tunstal, another witness, was in the back 144 feet east of the Fuchs property, right beroom of the building when the explosion took hind the property of witness. These openings place, and Fuchs and Kriebaum were in there in the alley are to a sewer connected with the with him, and by that explosion he was cast main sewer. That on the evening of the into the sewer, and from which he got out day of the fire (which occurred just a after struggling in the stream a distance of litile after noon) the smell from the sewer ot