
    [No. 19276.
    Department One.
    October 13, 1925.]
    Gertrude Mary Roscoe, as Executrix etc., Respondent, v. The City of Everett, Appellant.
      
    
    Waters and Watercourses (80, 87) — Public Water. Supply — Protection from Pollution — Negligence. Negligence of a city in permitting its water supply to be polluted is a question for the jury, where it appears that it permitted river waters, taken from a source close to where city sewers entered into the river, to be pumped into the line which was physically connected with all the city water in the district, with nothing but a closed gate valve to prevent pollution of the supply, and that the valve could have been easily sealed or the by-pass removed, and that the city failed to make inspection of the valve for more than three months after the connection was made.
    Same (80, 87) — Public Water Supply — Protection from Pollution — Negligence—Notice. There is sufficient notice to a city of the pollution of its water supply, where complaint was made to the officers of the health department and pollution of the water was shown for over three months, so that the city would be charged with constructive notice thereof.
    Same (80, 87) — Public Water Supply — Negligence — Instructions. In an action for the pollution of a city water supply through “faulty construction” of the water system, error cannot be assigned upon the giving of an instruction as to the “method of construction” where it must have been understood to refer to evidence of a gate valve, the only obstruction to a connection with a polluted source, and which was not properly guarded.
    Same (80, 87). The promise by a mill company to remove a bypass, connecting the city water supply with the mill’s polluted supply, does not relieve the city from liability for negligently allowing the by-pass to remain and pollute the city water supply.
    
      Trial (52) — Misconduct of Counsel — Correction of Objectionable Matte®. Prejudicial error cannot be assigned upon misconduct of an attorney in his argument to the jury in attacking the credibility of a witness by referring to the fact that he was interested and might be criminally prosecuted, where the court sustained the objection thereto, and stated that the case did not involve any criminal action.
    Afreal (458) — Harmless Error — Evidence — Pacts Otherwise Established. Error cannot be assigned upon the admission of a test of the polluted water of a river, where there was other evidence that city sewers were discharged into the river at the point in question.
    Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered August 26, 1924, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.
    Affirmed.
    
      O. Duncan Anderson and J. W. Dootson, for appellant.
    
      Stiger & Kaune, for respondent.
    
      
       Reported in 239 Pac. 831.
    
   Askren, J.

— Plaintiff brought this action to recover damages for herself and for the benefit of her minor child on account of the death of her husband, alleged to have been caused by drinking polluted water furnished by the city of Everett. From a judgment rendered upon the verdict of the jury in favor of plaintiff, tliQ defendant has appealed. Appellant challenges the sufficiency of the evidence.

This case involves many of the same facts as are detailed in Aronson v. Everett, post, p. 312, 239 Pac. 1011, whereby polluted water was permitted to pass into the city mainp through a by-pass connection at the Eclipse Mill Company’s plant. For the sake of brevity many of the facts detailed in that opinion will not be repeated here. It is sufficient to say that the evidence discloses that, on April 11,1923, a six-inch main was laid to connect two laterals, and that, when the connection was so made, it permitted free circulation of water to the city users in the district served, and also a better service to the Eclipse Mill Company. At the time this connection was made, there was a by-pass which had existed for a great many years. With the making of the connection there was no longer any need for the by-pass. This by-pass had in it what is known as gate valve “A,” a valve worked by hand, and which when closed effectually prevented water from passing through the pipe.

It was the contention of the city that, when the connection was made, this valve was closed, and that representatives of the mill company were advised of the danger and promised to remove the by-pass. There is a very sharp conflict in the testimony, the representatives of the mill company denying that they were ever notified that it was dangerous to have this valve open; denying that it was closed or had been kept closed for many years past, and further denying that they either promised to keep the valve closed or to remove it. There was also very sharp conflict in the testimony as to complaints made to city authorities. There is abundant testimony from which the jury had a right to find that complaints were made to the city long before any action was taken to remedy the defect. Appellant’s own witness admitted that while gate valve “A,” if kept closed, was an effectual way of preventing the passage of water, since it was the only obstruction preventing the passage of water from the mill company’s main to and into the city mains, and since the water of the mill company came from the Snohomish river, a polluted source, it was dangerous to leave such a by-pass at the point in question. It is true that the city mains usually carried a higher pressure than the mill company’s mains; but this varied owing to the changing operations in the mill, and to the increased nse of city water in the summertime.

There was also evidence that the city never inspected the valve in the by-pass from the date of its installation of the new main on April 11, until the 25th day of July, 1923; that no effort was made during that time to determine whether it was closed, or to determine if it had been removed by the mill company. The situation here is not parallel with those cases where the chance of pollution is small and incidental, as, for instance, where a city watershed covers a great deal of territory and constant policing would he required to prevent any contamination. In this case the city permitted water taken from a point close to where city sewers emptied into the river to be pumped into a line which was physically connected with all the users in the district. Nothing but the closed gate valve could prevent the polluted water reaching the consumers. The ease with which the valve could be sealed or the bypass removed, and the imminent danger to be apprehended by failure so to do, are strong factors in the question of the city’s negligence. It thus became a question of fact for the jury to determine, in the light of all the evidence in the case, whether or not the city was negligent in leaving this by-pass with the gate valve; whether it was negligent in its failure to inspect at any time thereafter, and whether it was negligent for failure to ascertain and remedy the condition of the polluted water after notice had been given it. The court did not err in submitting this question to the jury. Castner v. Tacoma Gas & Fuel Co., 123 Wash. 236, 212 Pac. 283.

Some contention is made by appellant that notices were given to the health inspector, and that such notice should not be construed to be notice to the city as far as the water department was concerned. It seems to us that complaints made to the health department were at least some notice to the city, for the complaints were made to the particular officers of the city selected to handle matters relating to the public health, and who were qualified to determine the city’s course of action. Indeed, it might well be said that the health officer would be far better qualified to act upon such information than an officer of the water department whose knowledge might be confined to the physical construction of the plant rather than to the matter of precautions necessary to be taken to secure immunity from pollution. But the question more clearly is whether, considering the necessarily close relationship between the city health department and the purity of water furnished by the city to its users, it can be found that notice reached the responsible authorities of the water department. In any event, however, the evidence showed the polluted condition of the water for a sufficient length of time to make it a question for the jury as to constructive, if not actual, notice to the city.

Objection is made to an instruction given by the court in which four different grounds of negligence based upon the complaint are set out. One of them had to do with the question of the manner or method of construction of the connection between the city system and the Eclipse Mill Company’s plant. Appellant insists that the evidence in the case does not uphold the allegation of the complaint that there was faulty construction, and that therefore no instruction should have been given upon this point. It may be that this instruction, read strictly in connection with the testimony of the witness Carver that there was nothing wrong with the method of construction, is subject to the objection appellant makes; but we think that, taken together with all the evidence in the case, it must have been intended by the court, and understood by tbe jury, to have had reference to the making of the connection of the 34th Street line, and leaving the by-pass, in which there was a gate valve, unguarded and unprotected. There was testimony to the effect that the gate valve should have been either sealed to prevent its being opened, or that it should have been protected so that no one could get at it, or, in lieu of either of these, that a warning sign should have been placed upon it. So we think that the jury must have understood that when the words “method of construction” of the connection were used, they had reference to this situation presented by the testimony.

Further objection is made to the giving of an instruction that any promise made by the mill company to remove the by-pass would not relieve the city. This instruction correctly states the law. It seems to be contended, however, that the court should have supplemented it by stating to the jury that it would have the right to take such promise, if made,' into consideration upon the question of whether or not the city was exercising ordinary care. We think this was sufficiently covered by the further instruction wherein the jury were told, “but you may and should consider any directions or orders given by the defendant, if you find there were such given, and all of the testimony as to the manner and method of the use of the connection and its appliances, in determining whether or not the city was negligent in the maintenance of the connection referred to in the testimony, and give such fact such weight as you deem it entitled to as bearing upon such issue.” This instruction seems sufficiently favorable to appellant, for if the promise of the mill company to remove the by-pass could not relieve the city, it seems difficult to understand how such a promise could have any material bearing upon the question of ordinary care, when viewed in the light of the testimony of the city’s own witnesses that no inspection of any kind was made to see whether the valve was kept closed or the by-pass removed.

It is also claimed that a new trial should have been granted because of misconduct of the plaintiff’s attorney. It appears that, upon one occasion, counsel for plaintiff, in referring to the testimony of the water superintendent, attacked his credibility because of his interest in the proceedings, and referring to the fact that he might be prosecuted criminally for his acts in connection with the failure to take proper precaution to protect the people of, the city of Everett against pollution of the water. On exception being taken to the statement, the court sustained appellant’s counsel, and called to the attention of offending counsel the fact that the case did not involve any criminal action. It is now claimed that this prejudiced the jury. Counsel for appellant did not specifically ask the court to instruct the jury to disregard the statement, but we think that the court’s statement to counsel would be so understood by the jury, and we cannot say, under the circumstances, that there was anything in the remark prejudicial to appellant that was not cured by the court’s statement in the presence of the jury.

Further complaint is made of evidence offered at the trial as to a test of the water from the Snohomish river made some eight or ten months after the death of respondent’s husband. It seemed to be the theory of' respondent that it would be necessary to show that the source of the mill company’s supply was polluted. There is nothing in the record to indicate whether there was any change in the condition of the water of Snohomish river between the time the test was made and the time of the epidemic; but even if it be assumed that the court was in error in admitting this testimony, no harm can follow, for the testimony of other witnesses, including those of the city, was to the effect that city sewers were discharged into the Snohomish river near the mill company’s plant, and that in itself would be sufficient to show contamination and pollution of the source of supply.

We have examined the record with care, and finding-no reversible error therein, the judgment of the superior court is hereby affirmed.

Tolmán, C. J., Parker, and Mitchell, JJ.,'concur.  