Wilkins v. Village of Rutland

The opinion of the court was delivered by Ross, J. The defendant owns and manages an aqueduct for supplying the inhabitants of the village with water for domestic purposes, and itself Avith water for the extinguishment of fires. For such use it has the right to lay aqueduct pipes through the streets of the village, and to maintain them. It is not contended that the village is not liable for injuries which it may cause by a negligent or improper use of its poAver, it being a right and privilege voluntarily assumed for its OAvn benefit, and not a municipal duty imposed by law. It is found by the referee that in the exercise of this right it laid a pipe along the highway in Green street, and placed therein, within the limits of the higíiAvay, in the spring of 1884, a water-box, to be used in letting on [338] and. shutting off the water, to supply a customer. This -water-box consisted of a cast-iron tube extending from the aqueduct pipe, near the surface of the ground, covered with a cast-iron cap, screwed on the end of the pipe. When put on the cap was a little below the surface of the ground. It is found.-that the water-box was located in the outer edge of the highway, which was nearly level, and as put in and left, when last examined in the fall of 1884, was safely and properly constructed. In the spring of 1886, from some cause, the cap of the box, by a change in the surface of the ground at that point, or from some other cause, was about three inches highe'r than the ground around if. The plaintiff’s husband and intestate, in attempting to pass a team in the road at that point, in June, 1886, was thrown from his carriage and killed, by the wheel of his carriage getting caught and broken on the cap of the water-box. It was conceded that the water-box, at the time of the accident, was not in proper repair, and was dangerous to travelers. It is found that “ the water commissioners of the village of Rutland did not exercise ordinary care and prudence in looking after it, and in keeping it in repair, and that their neglect to do so was the cause of the accident.” It is further found that no want of care on the part of the intestate contributed to the happening of the accident that resulted in his death. The plaintiff seeks to recover the damages she has sustained as the widow of the intestate, under the statute. It is agreed that the water-box was not defective nor out of repair at the time of the accident, except in the sense that the earth was worn down or washed away around it, as stated in the report. These are the controlling facts found and agreed upon, and the only contention is whether they entitle the plaintiff to recover. On the agreed' statement it is contended that the highway, and not the water-box, was defective ; that if the defendant had discharged its duty in regard to the repair of the highway, and filled around the water-box, there would have been no defect there and the intestate would not have been injured. This contention ignores the fact found by the referee, that it was “ conceded that the wafer-box, at the time of the accident, was [339] not in proper repair,” and tiie finding that the water commissioners “did not exercise ordinary earn in looking after it and in keeping it in rep dr, and that their neglect to do so wfis the cause of the accident.” It also assumes that, by reason of the earth having wont or washed away around the water-box. the, highway at that point had become insufficient. But no such fact is found by the referee, and we cannot presume that if existed. Notwithstanding the agreed statement, on the facts found, the cause of the -accident was iho improper condition of tlie water-box, or the negligence of the defendant in maintaining it in a proper condition. This places the negl ct upon the defendant as the owner and manager of the aqmducf, and not as having the supervision of and charged with the duty of repaiiing the highway at that point. For an injury cause 1 by its failure to repair the highways •within its limits the defendant is not liable, but for an injury -caused by its failure to propoily maintain its aqueduct it is liable. Welsh and Wife v. The Village of Rutland, 56 Vt. 228. "It is doubtless true, as contended for the defendant, that the ■water-box, in its situation at the time of the accident, was an obstruction to the highway at that point, but it was an obstruction which it was the duty of the defendant, as the owner and manager of the aqueduct to re nove, and not its duty as having control of the repairs on the highways within its limits. If the aqueduct had been owned and managed by a third person, and if the defendant had, undir the law, been liable to the p'aintiff because it had failed to remove the obstruction caused by the water-box, under the decision of this court the difeiidant could have recovered what damages and costs it might h ive been compelled to pay the plaintiff of such third persm, who caused the obstruction. On the authnriy of Mann v. Railroad Co.. 55 Vt. 484, the plaintiff, on the fids found, coul 1 have recovered the damages sustained, in a suit directly again.-t such third,person. The defendant, standing in the pi tec of such supposed third person, it follows that the plaintiff is entitled to recover the -damages, which she has sustained of it, in this suit. 2he judgin'nt of the County Court is affirmed.