Fink v. City of St. Louis

Napton, J. The only question in this case is the propriety of the assumption on the part of the plaintiff', that the city was liable for any negligence in the reconstruction of the sewer on Eighth street although such reconstruction was brought about in the building of a tunnel in the middle of the street, under authority from the State with which 57 the city had no concern. The petition of the plaintiff is based on two grounds, one of which is, that by the charter of the city the power over all the sewers, &c., of the city is expressly and exclusively granted to the city, and more especially, because ordinance 6442, in section 4, expressly declares that if, in the coui-se of the construction of said tunnel, “ it shall become necessary to make an open cut in any street or alley, or cut under or through any main or district sewer, or water pipe or gas pipe, it shall be the duty of said bridge company,” (transferred afterward to the tunnel company,) “ before removing any sewer, or water pipe or gas pipe, to notify the mayor and city engineer and reconstruct and rebuild such sewer * * in such manner as the mayor and city engineer may direct, and under the supervision of the city engineer.” The city contends that the responsibility of making the tunnel was thrown-by the State on the tunnel company alone, and the city had nothing to do with it, which is conceded by the .plaintiff, and when, in order to get the tunnel, it became necessary to excavate for a reconstruction of the sewer, that also was a consequence of the power granted by the State to construct the tunnel. Neither could be done without permission of the city, for so the law of the State declared, and this permission of the city was in fact accompanied with restrictions that if a change in sewers became necessary, the city authorities had to be counseled in regard to such change, and the work had to be done under the supervision of the city authorities. The circuit court which tried the case, therefore, held that whether the city engineer did in fact superintend the work or not, it was hi3 duty under the oi’dinance and charter to do so, and the city was responsible for any negligence occasioning injury to the proprietors of adjoining lots. And we think this view of the case was right and in harmony with the authorities. The action is not for damages occasioned.by the tunnel, but for an excavation for a sewer, which could only be done by consent of the city and under supervision of the city en~ 58 gineer. The plans for tbe work were submitted to the éity and approved, and whether its officers supervised its execution or not, was of no consequence, since it was their duty to have done so — a duty imposed by the charter and recognized in the ordinance, and with which the State had no concern and did not attempt to interfere. The questions in regard to negligence and the amount of damages were submitted to the jury, and no objections are made to the instructions on these points. The only point made in the case is the one we have referred to, and in this our opinion is that the circuit court was right, and, therefore, the judgment is affirmed. All concur.