                                 No. 12093

          I N THE SUPREME C U T O THE STATE O M N A A
                           OR    F           F OTN

                                    1972



ROBERTS REALTY CORPORATION,
a Montana Corporation,
ELIZABETH B. ROBERTS and MILTON L. ROBERTS,

                          P l a i n t i f f and Respondent,



CITY OF GREAT FALLS,
a Municipal Corporation,

                          Defendant and Appellant.



Appeal from:    D i s t r i c t Court of t h e Eighth J u d i c i a l Distrixt,
                Honorable Truman G. Bradford, Judge p r e s i d i n g ,

Counsel of Record:

     For Appellant:

          Donald J. Hamilton, Great F a l l s , Montana.
          J a r d i n e , Stephenson, Blewett and Weaver, Great F a l l s ,
             Montana.
          L. Morris Ormseth argued, Great F a l l s , Montana.

     For Respondent :

          Swanberg, Koby and Swanberg, Great F a l l s , Montana.
          Gorham Swanberg argued, Great F a l l s , Montana.



                                                   Submitted:      June 16, 1972

                                                     Decided : $ @      6 1972
~ i l e d : 6 l~ a~
                g z
Mr. Chief J u s t i c e James T. Harrison delivered the Opinion of the Court.
          T h i s i s an appeal by the City of Great F a l l s from a judgment entered
i n the d i s t r i c t court of Cascade County upon a jury verdict i n favor of the
p l a i n t i f f s i n the amount of $15,894.
          The record discloses t h a t t h i s action arose out of water damage t o
p l a i n t i f f s ' real property located i n downtown Great F a l l s caused by the
bursting of an adjacent water main.              Specifically, t h e break occurred a t
approximately 2:55 p.m. on January 25, 1969, and flooded the basement of
the Maverick Bar, located a t the corner of Central Avenue and Second S t r e e t .
The main precipitating the flood was a 12" c a s t iron d i s t r i b u t i o n l i n e
i n s t a l l e d by the City in 1930 along Second S t r e e t between F i r s t Avenue South
and F i r s t Avenue North.
          From the time the break occurred u n t i l the City f i n a l l y succeeded i n
shutting off the water a t approximately 4:35 p.m., i t i s estimated t h a t one
and one-quarter mil 1ion gallons of water escaped the main.               Most of this
amount coursed through the basement of t h e Maverick Bar, beneath the side-
walk, and up through heavy iron loading doors i n the sidewalk with such force
t h a t water spouted three f e e t above the sidewalk level.         Even a f t e r the main
was s h u t o f f , the City water department had t o continue pumping water from
p l a i n t i f f s ' basement u n t i l the early morning hours of the following day.    The
following sequence of events transpired from the time of the break u n t i l the
water was shut o f f .
          Donald Sponheim, p l a i n t i f f s ' tenant, observed water rapidly f i 11ing
the Maverick's basement almost immediately a f t e r the break occurred a t 2:55
p.m.   H t r i e d t o c a l l the Great Falls City water department a t t h e time of
        e
his discovery; despite l e t t i n g the phone ring probably e i g h t , nine, or ten
times, he received no answer.          Sponheim next called both the police and f i r e
departments f o r emergency assistance.           The police were then able t o contact
a water department employee, Sulo Korin, via two-way radio and inform him
of the location of the break.         Korin, the water plant operator, had been
observing a pressure recordation device prior to the time of the police
call and had observed a drop in pressure about 2:55 p.m. b u t was unable
t o d i r e c t a response t o i t because the recordation device does not indicate
where the loss of pressure has occurred.
           Another City water department employee, Char1es Wombold, overheard
the radio conversation between the police and Korin whereupon he l e f t his
work elsewhere in the c i t y and drove t o the scene of the break.            Wombold
t e s t i f i e d he arrived a t the scene within four minutes a f t e r hearing the
radio conversation.       In about 15 minutes other c i t y employees arrived to
help Wombold a t the valve in the F i r s t Avenue South-Second S t r e e t inter-
section.
           Jack Boettcher, a foreman f o r the water department also arrived in
the area of the break d u r i n g the time Wombold was working on one of the
valves.     Betcher proceeded to another valve on the broken main, located a t
the intersection of Central Avenue and Second S t r e e t , and with the help of
other water department employees t r i e d to shut off the flow of water through
that valve.     Since the Great Fa1 1s water delivery system mains are laid out
as a grid system, i t was necessary t o shut two valves in the main t o i s o l a t e
the break.
           The record indicates t h a t due t o accumulated ice and snow on the
s t r e e t , the frozen valve gates would not budge f o r anyone using only a hand
key, hand key w i t h extension arm "cheaters", or even a power-assisted key.
In f a c t , no progress was made toward closing e i t h e r of the valve gates until
one of Boettcher Is assistants suggested they go t o the c i t y distribution
shop a t Ninth Street and F i r s t Avenue South and bring back a heating device,
called a steamer, to thaw the frozen valve gates.             After the steamer was ob-
tained and used on each valve gate, the c i t y crews were able to close the
gates and i s o l a t e the break.
           Boettcher t e s t i f i e d i t never occurred t o him t h a t a steamer would be
necessary t o shut the valves.
             A a r e s u l t of the foregoing events, the basement of p l a i n t i f f s '
              s
Maverick Bar was immediately flooded and remained inundated for a t l e a s t
nine hours and perhaps f o r as long as thirteen or fourteen hours.
             The history of the particular section of main in question, laid i n
1930, includes two previous breaks.              One major break occurred in 1957,
approximately seventeen f e e t from the 1969 break.               Another break occurred in
1962.
             One of defendant's witnesses, Del bert Brick, the Great Falls dater
and sewer department commissioner, t e s t i f i e d t h a t s i x t y years would be con-
sidered a minimum lifespan f o r such mains.              Although the two prior breaks
occurred when the pipe was only halfway into i t s minimum lifespan, there
were apparently no t e s t s or laboratory analyses made t o determine the cause
of f a i l u r e .   Defendant City introduced no evidence of such t e s t s .          In f a c t ,
the testimony of the C i t y ' s witnesses shows t h a t the City has no standard
procedure or checklist to follow in the local examination of main breaks
which would enable the City t o determine the actual condition of the pipe.
The record shows t h a t t e s t s simply are not performed on removed defective

pipe.      Testimony f o r the City did indicate that visual inspection f o r
corrosion was made a t the time of making service connections and making
repairs t o the mains.         There was admission on the part of the c i t y , however,
that even when local, visual inspection of the defective pipe i s made, no
written reports on the condition of the broken pipe a r e kept.
             Although a t one time a map of a l l breaks was kept by the City               , this
map was discontinued sometime prior to 1968. The only way records of water
main breaks may be found today is by examining water department repair orders,
which a r e kept in chronological order only and cover the whole c i t y , without
grouping of breaks by mains or area.
             One of p l a i n t i f f s ' witnesses, a water department employee, t e s t i f i e d
a t t r i a l t h a t the water department repair orders disclosed the existence of
approximately twenty breaks in the downtown area, particularly in a six-block
by two-block retangle encompassing the main in question, in the past ten
years.   I t took the employee about three days to locate the number of breaks
recorded f o r the particular area.         H admitted on questioning by the City
                                             e
that t h i s l i s t of "breaks" included repairs t o minor leaks not requiring
replacement of the main.        A c i v i l engineer and former pub1 i c works director
f o r the City of Great Falls t e s t i f i e d t h a t such history of breakage in t h i s
area would indicate to him t h a t the piping should be replaced.                 One of de-
fendant's own expert witnesses, Edward Nurse, stated that such was an un-
usually high number of breaks in a small area.               Nurse, however, stated t h a t
such breakage would not indicate replacement.
         Delbert Brick, the present water commissioner, stated the City's
replacement formula called for install ation of new pipe when the                  " ***
annual cost of repairing the breaks becomes greater than the annual cost of
replacing the main     * * *".     The City did n o t enter evidence, however, re-
garding the cost of repairing any particular main in Great Falls or f o r the
City as a whole.      Neither did defendant produce testimony regarding how
many breaks are necessary before the repair cost begins t o exceed replace-
ment cost.
         B o t h the City and p l a i n t i f f s entered conflicting expert testimony
regarding the type and classification of the main in issue and the nature of
manufacturing defects a1 1eged t o be incorporated into the pipe.                  Experts
f o r both sides made laboratory analyses of sections from the broken main in
order t o determine the cause of the January, 1969, break.
         Richard Hol t , p l a i n t i f f s ' expert metallurgical engineer, t e s t i f i e d
that the cause of the break was a slag inclusion in the pipe a t the time i t
was c a s t by the p i t cast method.     H stated t h a t the slag inclusion reduced
                                           e
the strength of the pipe wall below specifications.                The City had apparently
ordered Class 150 c a s t iron pipe i n 1930. The pipe was supposed t o w i t h -
stand 150 pounds per square inch.             Holt found t h a t the pipe a c t u a l l y f a i l e d
t o reach minimum standards f o r Class A p i t c a s t pipe, 43 pounds per square
inch.     The average working pressures i n Great F a l l s vary between 80 and 90
pounds per square inch.
           P l a i n t i f f s ' expett engineer further t e s t i f i e d t h a t the pre-existing
defect could have been detected by an adequate inspection prior t o the time
i t was l a i d .
           Holt found the average l i f e expectancy f o r t h i s type of pipe t o be
f o r t y years, and t h a t a history of thirty-nine years i n the ground plus two
previous breaks would provide strong indication f o r replacement.                      I t was
his opinion t h a t the existence of records of previous breaks "would be of
g r e a t value'' i n determining how rapidly the pipe was deteriorating.
           In most d e t a i l s , H o l t ' s testimony was squarely contradicted by de-
fendant's expert, Char1e s Avery, who stated t h a t the pipe was centrifugal l y
c a s t r a t h e r than p i t c a s t and t h u s had greater wall strength than p i t c a s t
pipe of s i m i l a r thickness.     Avery came t o the conclusion t h a t the most probable
cause of the break " i s the pipe reaching t h e l i m i t of i t s service l i f e under
t h e existing s o i l and water conditions        * * *".
           B o t h p l a i n t i f f s ' experts and the C i t y ' s water comissioner agreed
t h a t i t i s desirable t o place granular bedding or cushioning materials under
the pipe a t the time of i n s t a l l a t i o n t o prevent damages from ground movement,
shock, and corrosion.         The record shows, though, t h a t the pipe i n question
was l a i d without the use of any cushioning material.
           When questioned regarding whether private landowners had ever repaired
breaks i n Great Falls water mains and regarding who had authority t o make
such r e p a i r s , Brick t e s t i f i e d t h a t private landowners had not made such re-
p a i r s , t h a t the City makes a l l service connections t o t h e mains, t h a t t h e
City r e p a i r s breaks i n the mains, and t h a t furthermore, the Great F a l l s water
department has the s o l e and exclusive j u r i s d i c t i o n over the c i t y water mains.
            Finally, we note the testimony by Brick regarding the a b i l i t y of the
City t o carry out i t s stated water main replacement policy.

            "Q. Now, j u s t before t h e hearing on t h a t water r a t e
            increase you were quoted by the Tribune, under date of
            February 18, 1968, as saying: 'We j u s t d o n ' t have
            enough gross revenue t o operate the Water Department
            properly. We're not keeping u p with the system's
            needs. ' Were you properly quoted t h e r e , Mr. Brick?
            A. I w o u l d s a y I w a s .

            "Q. That was your belief a t t h a t time, was i t ? A.
            I t ' s m belief now."
                     y
            A t the close of p l a i n t i f f s ' case and again a t conclusion of t h e
trial   , defendant City moved f o r a directed verdict and the motions were
denied.       Following an adverse jury verdict, defendant moved f o r judgment not-
withstanding the verdict or f o r a new t r i a l .       Again t h e motions were denied.
            Four issues a r e presented f o r review.      Even though one of the issues
hereinafter s e t f o r t h requires reversal and remand f o r a new t r i a l , we never-
theless find i t essential t o discuss each of the issues presented as well
as t h a t issue revealing prejudicial e r r o r .      In other words, we find t h a t a
consideration of a l l alleged e r r o r is necessary by reason of t h e remand f o r
new t r i a l .   See section 93-216, R.C.M.      1947 and Herrin v . Herrin, 103 Mont.


            P l a i n t i f f s and defendant a r e in substantial agreement as t o t h e
framing of the l a t t e r three issues s e t forth-below. They disagree markedly
i n the statement of the f i r s t issue and in t h e i r approach t o argument of
t h a t issue.    Therefore, we separately present p l a i n t i f f s ' and defendant's
characterizations of the f i r s t issue.
            (1) The f i r s t issue concerns the giving of actual notice t o the City
and the C i t y ' s knowledge of t h e defect by means of reasonable inspection.
                   ( a ) Defendant City s t a t e s the issue as follows:    Whether t h e
                   court erred i n denying defendant's motion f o r a directed
                   verdict and f o r judgment notwithstanding t h e verdict because,
                  as a matter of law, the City did not have actual notice of
                  any defect i n the water main which caused p l a i n t i f f s '
                  damage nor was i t s lack of knowledge the r e s u l t of a f a i l u r e
                  t o make a reasonable inspection;
                   (b) P l a i n t i f f s characterize t h i s issue:   Whether or not i t i s
                  necessary t o give the City notice of a defect i n a buried
                  water main;
           (2)    Whether i t was e r r o r t o give the c o u r t ' s instruction No. 9
s e t t i n g f o r t h the r e s ipsa loquitur c r i t e r i a ;
                            --
           (3) Whether the City was negligent in the manner in which i t shut
off the escape of water from the broken main; and
           (4) Whether i t was e r r o r t o refuse t o give defendant's proposed
instruction number 8B concerning the standard of care t o be exercised by
operators of waterworks.
           The f i r s t issue f o r review a r i s e s from the provisions of section 11-
1305, R.C.M.      1947, the pertinent portion of which i s as follows:
           "Defective highways and public works--notice of claims
           f o r i n j u r i e s . Before any c i t y or town i n t h i s s t a t e
           shall be 1i a b l e f o r damages to person and/or property
           f o r , or on account o f , any injury o r l o s s alleged t o
           have been received or suffered by reason of any defect
           or obstructions in any bridge, s t r e e t , road, sidewalk,
           c u l v e r t , park, public ground, f e r r y boat, o r public
           works of any kind in said c i t y o r town, i t must f i r s t
           be shown t h a t said c i t y or town had actual notice of such
           defect o r obstruction * * * before such injury o r damage
           was received * * *."
           Defendant's proposed instruction No. 5, given without any objection
as c o u r t ' s instruction No. 6 , incorporated the above notice provision as
well as c e r t a i n Montana case law interpreting this s t a t u t e .        The instruction
reads :
            "Before any c i t y can be l i a b l e f o r damages, f o r a loss
          received from a public works of t h e c i t y , i t must be
          shown t h a t the c i t y e i t h e r had actual notice of the de-
          f e c t complained o f , o r , created the defective condition
          by i t s own a c t , o r , should have known of the defect by
         means of a reasonable method of inspection, and a reasonable
         opportunity t o r e p a i r i t before t h e damage was received.
         Therefore, unless i t is established by a preponderance of
         the evidence t h a t the c i t y had such actual notice of t h e
         defective pipe, or created the defective condition by i t s
         own a c t , or should have discovered the defect by use of
         a reasonable method of inspection, and an opportunity t o
         r e p a i r i t before the piping caused the damage, t h e c i t y
         cannot be 1 iabl e. "
         There i s no evidence in the record t h a t the City had actual notice
of the defective condition i n t h i s main p r i o r t o the break of January 25,
1969. The City f u r t h e r urges t h a t the evidence will not support a find-
ing t h a t i t created the defective condition by i t s own a c t or should have
discovered t h e defect by use of a reasonable method of inspection.
         P l a i n t i f f s now argue f o r the f i r s t time on appeal t h a t the actual
notice requirement of section 11-1305, R.C.M.                 1947, i s not applicable t o
the breaking of a c i t y water main.            P l a i n t i f f s claim t h a t t h e City operates
the water supply system as a7,proprietary, not governmental                    , function and
t h a t when so operating stands i n the same shoes a s any private corporation
i n similar factual circumstances.
         Whatever merit p l a i n t i f f s ' contention may have, we need not here
consider the a p p l i c a b i l i t y of section 11-1305's actual notice requirement.
The necessity of notice under&sectfon 11-1 305 cannot now be t r e a t e d as an
issue because p l a i n t i f f s f a i l e d t o r a i s e an objection t o the giving of de-
fendant Is proposed instruction No. 5.               P l a i n t i f f s ' contention on appeal
t h a t notice is unnecessary i s c l e a r l y an objection t h a t defendant's proposed
instruction does not s t a t e the law.
         I t i s well-recognized by this Court t h a t such objections must be
raised w i t h p a r t i c u l a r i t y a t t h e time of t r i a l or the opportunity is l o s t .
A we s t a t e d i n Seder v. Kiewi t Sons ' Co. , 156 Mont. 322, 330, 479 P .2d
 s


         " * * * Objections t o instructions not raised i n the t r i a l
         court upon settlement cannot be raised f o r the f i r s t time
         on appeal    ."
                      (Citing e a r l i e r Montana cases.) See a l s o
         Rule 51, M.R.Civ,P.
          Assuming t h a t the jury followed the Court's instruction No. 6
and even i f i t concluded the City had no actual notice of the defect,
i t s t i l l had the opportunity t o consider and find the existence of cer-
t a i n exceptions t o the actual notice requirement.
          In Floyd v. City of Butte, 147 Mont. 305, 412 P.2d 823, we noted
one such exception t o be t h a t t h e municipality i s charged with notice of
what a reasonable inspection would disclose.              P l a i n t i f f s may thus prove
t h a t defendant did not make a reasonable inspection.
          Here, there was ample evidence in the record, comprised of the
testimony given by t h e water conmissioner, from which t h e jury could deter-
mine t h a t the C i t y ' s method of inspection was not reasonable.            W agree
                                                                                  e
with the c o u r t ' s instruction No. 8 which s t a t e s t h a t a reasonably prudent
water d i s t r i b u t o r need n o t regularly dig up and inspect i t s buried water
mains.    On the other hand, in regard to the actual method of inspection
employed, Brick t e s t i f i e d t h a t when a piece of pipe i s uncovered f o r r e p a i r ,
an "eyeball inspection" and the primary decision on replacement a r e made by
"the man t h a t i s down in the ditch looking a t the pipe".             If subordinates
cannot then come t o a decision on whether a pipe should be replaced, the
water commissioner is consulted.           Yet t h e water comnissioner s t a t e d he had
no special training t o determine the condition of pipe.                The jury could find
t h a t defendant's method of visual examination f o r corrosion was haphazard.
One of the C i t y ' s witnesses a l s o stated t h a t there was no standard procedure
or "count-off 1i s t " followed when pipes were examined a t the time of the
break.    In s h o r t , the jury could have determined t h a t a more precise and
reasonable manner of inspection a t the time of the 1957 and 1962 breaks of
t h i s main would have dictated replacement w i t h consequent avoidance of t h e
1969 damage.
         Another exception t o actual notice s e t f o r t h by the c o u r t ' s instruc-
tion No. 6 is the municipality's creating the defective condition by i t s own
 act. As we stated in Watson v. City of Bozeman, 117 Mont. 5, 13, 156 P.2d


        " 'Municipal corporations are chargeable with know1 edge
        of their own acts, or those ordered by them; and there-
        fore whenever defective conditions in streets are due
        to the direct act of the municipality itself or of
        persons whose acts are constructively its own * * * no
        notice need be shown, or, as it is otherwise stated,
        notice of the defect is implied in such cases.
        "'The rule that notice is not necessary to charge a
        municipality with liability for defects due to its own
        direct act applies where the defect is one of original
        construction, as distinguished from a mere condition
        of repair * * *. The fact that actual notice, as a
        condition of municipal liability, is expressly provided
        for by statute or municipal charter does not change the
        rule that notice is not necessary when the defective
        condition is due to the direct act of the municipality
        or of those acting by its authority, including cases
        of defects in original construction. "' (Citing 43
        C.J. 1042)
        Here, as noted above, plaintiffs ' expert metal 1 urgical engineer
gave his opinion and the jury could have be1 ieved that the cause of the
break was due to a basic defect in manufacture and that the pre-existing
defect should have been discovered prior to inslallnt3oh of the pipe. De-
fendant's expert, Avery, reached opposing conclusions from examination of
another section of pipe. Clearly, fact questions for the jury are presented
as to whether a reasonable method of inspection was followed by the City
and regarding whether a defect in original construction existed. Even
though controverted by defendant, plaintiff's evidence presents competent
theories in each instance. When plaintiffs' evidence supports competent
theories on questions of fact, the court below should not direct a verdict
for defendant and thereby remove from the jury its fact finding power.
See Benner v. B. F. Goodrich Co., 150 Mont. 97, 430 P.2d 648 and Vukmano-
vich v. State Assur. Co., 82 Mont. 52, 264 P. 933.
        Thus, we conclude that the court below did not err in denying de-
fendant's motion for directed verdict and for judgment notwithstanding the
verdict on the issue of notice and the exceptions to the notice requirement.
          The second issue for review is whether the court erred in giving
instruction No. 9 setting forth the res ipsa loquitor doctrine for use
with these facts. For the following reasons, we conclude that it was error
to give an instruction on res i ~ s alo~uiturin this case and that such error
was prejudicial.
          Plaintiffs' instruction, in summary, stated that the following must
be found before an inference arises that the defendant was negl igent:
          (1)   The instrumentality was the proximate cause of plaintiffs'
injury and damage;
          (2) The instrumentality was in the possession or exclusive control
of defendant at the time;
          (3) That the occurrence was one of such nature that it does not
happen in the ordinary course of things so long as the party in control uses
ordinary care; and
          (4) That the circumstances were not then and are not now such that
plaintiffs are in position to know what specific conduct brought about the
injury.
          Clearly, res ipsa cannot apply to plaintiffs' theory that defendant
negligently responded to the break itself. All facts relating to abating
the flow of water once the main break had occurred were obviously such that
plaintiffs as we1 1 as defendant had equal access to the factual circumstances.
          The only possible theory of plaintiffs' case to which the doctrine
might apply is that which alleges negligence by the City in not replacing
the main before the break occurred. As a matter of law, the necessary third
element of the instruction given, that the event does not ordinarily happen
absent someone's negligence, was not demonstrated by plaintiffs. On the
contrary, the record here is replete with evidence that such breaks could
occur absent any negl igence. Evidence from both parties ' experts showed
that the life expectancy of cast iron water pipe varied depending on the
corrosiveness of the soil. Plaintiffs' witness Holt stated the average
service expectation to be about forty years. Testimony showed the location
of corrosion damage to be almost impossible to determine. Testimony further
showed that fracturing damage could occur from temperature variation of the
water flowing in the mains, impact from street traffic above the mains,
and from movement of ground water producing a varying water content in the
soil, thereby causing stress from soil expansion. Thus, many causes of
pipe failure were demonstrated which have no relationship to negligence by
anyone.
          In Fanning v. Montclair, 8 N,J.Super. 481, 196 A.2d 18, a water
                                    1
main breakage case, the record did not disclose what caused the break, and
plaintiff suggested the existence of a defect when the main was originally
installed or, in the alternative, deterioration of the main over time. The
court noted, however, that the cause might also have been completely un-
related to plaintiff's hypotheses in that a settlement of the earth itself
might have caused the break. The appellate court upheld the trial court's
refusal to instruct on the doctrine of - ipsa loquitur with the observa-
                                       res
tion at p. 20 of the opinion:
          "In any event, proof of the break in the main, without
          more, does not entitle plaintiff to an inference that
          the break was the result of some negligence on defend-
          ant's part."
          In the appeal before us, we find the giving of the res ipsa instruc-
tion particularly prejudicial because the jury may have used the doctrine to
cast a presumption of negligence upon defendant when the evidence on the
issue of simple negligence was near equipoise. We do not know on what find-
ings the jury based its general verdict. We do know, however, that the
evidence of negligence presented by plaintiffs, contradicted by defendant,
was not so substantial that the rule of Jessen v. O'Daniel, 136 Mont. 513,
349 P.2d 107, would apply. That rule provides that so long as substantial
evidence appears in the record to support the judgment, the judgment will
not be overturned on appeal even though the evidence is conflicting.
        Therefore when a case has been submitted on an erroneous instruc-
tion, prejudicial as it was in this case to allow the jury to consider the
use of - ipsa loquitur against the defendant, the judgment will be re-
       res
versed. Where, as here, it is impossible to say upon what theory or under
what part of the court's instructions a verdict is based, error in any one
of the instructions which is prejudicial and which may influence the jury
entitles the unsuccessful party to a new trial. Wolf v. O'Leary, Inc.,
132 Mont. 468, 318 P.2d 582.
       This brings us to the third issue for review: whether the City
was negligent in the manner it shut off the water escaping from the broken
main or was otherwise negligent. It is on the issue of negligence that the
defendant is entitled to a new trial. The plaintiffs had two theories of
negligence, one relating to the City's actions taken subsequent to the break
and the other to the City's installation and maintenance of the pipe prior
to the break, and presented evidence in support of each theory.
        It should be noted that the court gave a general instruction on
negligence which was not limited to a consideration of events surrounding
the actual break of the main. The jury was free to consider any lack of
ordinary care by the City resulting in damage to plaintiffs' property. For
the reasons set out below, we find that on the new trial of the negligence
issue, the jury should be allowed to consider evidence only in regard to the
negligent operation of the water department prior to the time of the break.
       There simply was not substantial evidence here for the jury to find
negligence by the City in actually responding to the break. The court be-
low therefore should have taken from the jury any consideration of negligence
in regard to shutting off the flow of water. As we stated in Mang v. Eliasson,
153 Mont. 431, 458 P.2d 777:
        "'To sustain a recovery, the evidence relied upon, whether
          d i r e c t or i n d i r e c t , must be substantial--more than
          a mere s c i n t i l l a (Citing cases) * * * I
          "While the jurors are the s o l e judges of t h e f a c t s ,
          the question of whether or n o t there i s substantial
          evidence in support of p l a i n t i f f ' s case i s always a
          question of law f o r the c o u r t , "
          Here, the evidence shows t h a t the break f i l l e d the basement of the
Maverick Bar within a matter of minutes a f t e r the break occurred.                 The
damage thus occurred before i t was reasonably possible f o r the City t o
a r r i v e and control the break.     The damage was not proximately caused by
any a1 1eged delay i n a r r i v a l by c i t y crews.
          Furthermore, the evidence overwhelmingly shows reasonable care i n
the manner of the C i t y ' s response, once the water department was notified
of the break.     This is p a r t i c u l a r l y true i n l i g h t of the extreme winter
conditions.
               Wombold arrived on the scene within four minutes a f t e r hearing
the radio conversation between t h e police and Korin which i d e n t i f i e d the
break's location.        Wombold arrived a t the scene with a map of valve loca-
t i o n s and t o o l s f o r closing the valves (including a power key on the t r u c k ) .
H received additional help from City personnel within ten t o f i f t e e n minutes.
 e
          P l a i n t i f f s objected t o the f a c t t h a t Wombold and others did not
a r r i v e w i t h a steamer device in t h e i r trucks and could not close the valves
until one was brought from the City shops.               Boettcher, however, t e s t i f i e d
t h a t t h i s was the f i r s t time a steamer had ever been used on a water main
break of t h i s type.     H s t a t e d the water department r a r e l y needed such eqdip-
                            e
ment and did not make a habit of carrying i t on the trucks.
          Such f a c t s do not c o n s t i t u t e substantial evidence of negligence i n
the C i t y ' s response t o the break; t h i s f a c e t of t h e negligence issue should
not have gone t o the jury.
          On the other hand, a f a c t question i s presented on the issue of
whether the C i t y ' s operation of the water department was negligent insofar
as i t r e l a t e s t o the proper replacement of f a i l i n g mains.       Credible evidence
was presented from which the jury might determine the C i t y ' s record system
was i n s u f f i c i e n t t o make use of i t s standard of replacing pipe when the
annual cost of repair exceeds amortized annual cost of replacement.                        The
jury might find t h a t t e s t s should have been conducted in 1957 and 1962,
when t h i s same main previously broke, t o determine i t s condition.                  Perhaps
the City should have been a l e r t e d t o the need f o r replacement by the number
of breaks i n the area including t h i s main.
          The jury, of course, may have be1 ieved the C i t y ' s evidence re-
garding these events.         So, too, i t was f o r the jury t o determine the exis-
tence of any negligent i n s t a l l a t i o n of main, based on the conflicting t e s t i -
mony of p l a i n t i f f s ' and defendant's experts on the type of pipe i n s t a l l e d
and the condition of the main a t the time of the break.
          I t was thus not e r r o r f o r the court t o deny defendant's motion f o r
a directed verdict on the negligent operation aspect of the issue; i t will
be necessary though t o conduct a new t r i a l on t h i s issue without the pre-
judicial influence of an improperly charged r e s ipsa loquitur instruction.
          Finally, the defendant urges t h a t the court below should have given
the following instruction:
          "In this case the standard of care required by the de-
          fendant i s t h e care which reasonably prudent operators
          of waterworks a r e accustomed to use under circumstances
          similar t o those e x i s t i n g i n this case.
          "Where such standard i s not such matter of common know-
          ledge, the burden r e s t s upon the p l a i n t i f f s t o introduce
          s u f f i c i e n t evidence from which a jury may reasonably
          determine the standard of care appropriate t o the situ-
          ation developed by the evidence. "
          P l a i n t i f f s maintain t h a t the proper instruction i s t h e c o u r t ' s
instruction No. 5, defining negligence as a want of ordinary care and s k i l l
i n the circumstances, which reads:
          "Every person i s responsible f o r injury t o the person or
          property of another, caused by want of ordinary care or
          ski 11 , (subject t o the defense of contributory negl igence)                 .
          When used in these instructions, negligence means want
          of such ordinary care or s k i l l . Such want of ordinary
          care or s k i l l e x i s t s when there is a f a i l u r e t o do t h a t
          which a reasonable and prudent person would ordinarily
          have done under the circumstances of the s i t u a t i o n , or
          doing what such person under the existing circumstances
          would not have done. "
          P l a i n t i f f s claim t h a t the standard of care advanced by defendant,
replacement when annual cost of repair exceeds annual cost of replacement,
i s negligent in i t s e l f .   P l a i n t i f f s do not c i t e s p e c i f i c authority in suppoint
of t h e i r position.    Despite defendant's c i t a t i o n of authority in some
j u r i s d i c t i o n s which would require p l a i n t i f f t o introduce substantial evidence
from which a jury may reasonably i n f e r t h e standard of care appropriate t o
the s i t u a t i o n , w do not believe the p l a i n t i f f s should be so required.
                         e
          Our review of the a u t h o r i t i e s on the applicable standard of care
shows t h a t municipalities constructing, maintaining and operating a water-
works system a r e 1i a b l e f o r negligence i n t h e performance of such functions in
the same manner as a private corporation or individual would be.                         63 C.J.S.
Municipal Corporations, Section 91 5.
          The duty of care i s such cases should simply be t h a t of ordinary
care, the reasonable man standard.             See Central Park Plaza Corp. v . City of
Nw York, 26 N.Y.S.2d 241.
 e                                   In Stein v. Louisville Water Co., 249 S.W.2d
                                 d

750, the Kentucky Court of Appeals found e r r o r in the giving of t h a t part of
c i t y ' s instruction which went beyond defining defendant's duty as t h a t of
ordinary care.       In t h a t case, p l a i n t i f f sought recovery f o r water damage re-
s u l t i n g from two breaks in defendant's main.           The court stated the instruc-
tion "should have merely submitted the issue of ordinary care on the part of
the defendant t o learn of the defective condition of the pipe and remedy i t . "
In Y Cocke and Kettle, Inc. v. Town of Seabrook, 224 A.2d 578, the Supreme
    e
Court of Nw Hampshire noted t h a t defendant municipality's duty was t o oper-
          e
a t e i t s water system i n an ordinary, prudent manner.               And i n Yearsley v . City
of Pocatello, 210 P.2d 795, the Idaho Supreme Court found t h a t while the c i t y
was not an insurer of its water system condition, it was bound to use
"ordinary care and ski1 1 " in constructing and maintaining the system.
         In none of these cases do we find plaintiff required to introduce
sufficient evidence to define a particular standard of care appropriate to
the individual fact situation. We agree that such would be an unconscionab1e
burden and thus find no error in the refusal of defendant's proposed in-
struction.
         In accordance with the foregoing, the judgment is reversed and the
case is remanded for a new tr




We concur:
                              L


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   Associate Justices
