Opinion
Argued March 5, 1890
Decided April 15, 1890
Almet F. Jenks for appellant.
Homer A. Nelson for respondent.
In the construction of the water main and fire hydrant the defendant did that which it lawfully might. No contractual relations existed between it and the plaintiffs, and in the construction and maintenance of water-works, mains and hydrants for the benefit of the municipality, it owed to the plaintiffs no other or further duty than to the other residents of the city.
A municipal corporation does not insure the citizen against damage from works of its construction. Its obligation and duty in such respect is measured by the exercise of reasonable care and vigilance. Liability can only be predicated upon its neglect or misconduct. ( McCarthy v. City of Syracuse, 46 N.Y. 194; Smith v. Mayor, etc., 66 id. 295; Ring v. City of Cohoes, 77 id. 83; Hunt v. Mayor, etc., 109 id. 134.)
Proof that the plaintiffs sustained damage by the flooding of their works with water from defendant's mains could not alone justify a recovery. It was necessary to go further and show that the injury was occasioned by an omission of duty on the part of the municipality, in that it failed to use reasonable care in the erection and construction of the hydrant, or thereafter omitted to properly superintend it for the purpose of keeping it in repair. No attempt was made to show that the method of construction adopted by the city was defective; the hydrant imperfect; the materials of inferior quality; the workmen unskillful; or that the work was not carefully and thoroughly done. Neither by the testimony of an eye-witness, or opinion of an expert, was an effort made by evidence to account for the removal of the hydrant which resulted in the escape of the water. The evidence at most permitted a guess that the hydrant had been forced out by the pressure of water rather than by some active power above the surface. On the other hand five or six witnesses who took part in the erection of the hydrant asserted that the plan of construction was the best known to them; that the materials used were new and good; the work was skillfully done, and that when completed it was a good job.
We think the case was without evidence to support a finding that the injury was due to the negligence of the defendant in constructing the hydrant.
It follows that the motion for nonsuit should have been granted.
The judgment should be reversed.
All concur.
Judgment reversed.