DIVISION ONE.
Barclay, J.
This action was brought under the damage act (R. S. 1889, chap. 49, secs. 4426, 4427) to recover for the death of Mr. Carl E. Euchs. 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. Euchs 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 [176]*176stood over a public sewer, built by tbe 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, 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 fourteen feet in diameter, had an arched top, and was built chiefly of masonry.
July 22nd, 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 engines were throwing streams of water on the burning buildings, large quantities of oil and 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 [177]*177heard to give them any directions concerning the prosecution of the work, nor was it shown that the workmen 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, three or four hundred gallons.
Four days after the fire the explosion occurred, shortly after 4 p. m. The immediate cause was the act of an employe of a shop (not far from the saloon) who' went into a 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 him off his feet, stunned him and set fire to his clothes. He remembered nothing more for sometime 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, 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, an old riverman, was thrown into the sewer and struggled and swam in it a distance of several hundred feet, but was fortunate enough to [178]*178escape alive. His positive evidence showed the presence 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 sixty 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 crude petroleum and is lighter, and the like vapors will form from it speedier than from 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.
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 26th, 1892, the day of the disaster, and this suit was instituted on September 16th following.
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 [179]*179construction 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.
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DIVISION ONE.
Barclay, J.
This action was brought under the damage act (R. S. 1889, chap. 49, secs. 4426, 4427) to recover for the death of Mr. Carl E. Euchs. 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. Euchs 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 [176]*176stood over a public sewer, built by tbe 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, 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 fourteen feet in diameter, had an arched top, and was built chiefly of masonry.
July 22nd, 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 engines were throwing streams of water on the burning buildings, large quantities of oil and 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 [177]*177heard to give them any directions concerning the prosecution of the work, nor was it shown that the workmen 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, three or four hundred gallons.
Four days after the fire the explosion occurred, shortly after 4 p. m. The immediate cause was the act of an employe of a shop (not far from the saloon) who' went into a 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 him off his feet, stunned him and set fire to his clothes. He remembered nothing more for sometime 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, 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, an old riverman, was thrown into the sewer and struggled and swam in it a distance of several hundred feet, but was fortunate enough to [178]*178escape alive. His positive evidence showed the presence 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 sixty 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 crude petroleum and is lighter, and the like vapors will form from it speedier than from 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.
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 26th, 1892, the day of the disaster, and this suit was instituted on September 16th following.
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 [179]*179construction 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 ñre át 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 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 toward 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 [180]*180opening, about three 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, toward averting the effects likely to follow the escape of such a large body of volatile oils into a sewer whose natural outlet was obstructed by the high water in the river, as stated.
All the facts which made the sewer dangerous-might fairly have been found to be within the knowledge of the city officials, after the lapse of time following the fire. Vanderslice v. Philadelphia (1883) 103 Pa. St. 102.
Carefully managed sewers do not, according t'o-the common experience of men, usually blow up and scatter destruction and death. Such a performance is-of itself entitled to consideration, on the issue of care in respect of such property; or as some jurists have-said, “The thing itself speaks.” Byrne v. Boadle (1863) 2 H. & C. 722; Koelsch v. Phila. Co. (1893) 152 Pa. St. 355 (25 Atl. Rep. 522); Judson v. Giant Powder Co. (1895) 107 Calif. 549 (29 L. R. A. 718, 40 Pac. Rep. 1020); Sheridan v. Foley (1895) (N. J. L.) 33 Atl. Rep. 484.
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 steps appear to have been taken in regard te 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. [181]*181It 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 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 can not 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. Lee v. Vacuum Oil Co. (1889) 54 Hun 156.
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. That 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.
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.
Bka.ce, O. J., and Robinson, J., concur. Macafblane, J., concurs in the result.
[182]*182IN BANC.
Per Curiam. — The foregoing opinion of Barclay, J., handed down in Division No. 1, is adopted as the opinion of the Court in Banc.
Brace, C. J., G-antt, and Macfarlane, JJ., concurring therein with him, Sherwood, Burgess, and Robinson, JJ., dissenting.
Accordingly the judgment of the circuit court is affirmed as to the Waters-Pierce Oil Company, and is reversed and remanded for new trial as to the city of St. Louis.