ON PETITION FOR REHEARING. In our statement of the facts relating to the investigation made by the city and state boards of health, we erroneously stated that water taken from a fire hydrant connected with 17. the Anthony Boulevard main was, on examination, found to contain colon bacilli, and that the bacterial count was 2,700 colonies per cubic centimeter. The water containing the colon bacilli and the high bacterial count was taken from a tap in the railroad main in or near the railroad yards. The exact location of this tap is not disclosed, although the inference is that it was near the "by-pass." The fact remains, however, that the water in the railroad main was taken from the typhoid polluted water of St. Marys River, and that there was a direct connection between that main and the water supply of the city. Each appellant stands charged with notice of the character of the water in the river and in the railroad main. At least the jury would have been justified in so finding.
Appellants, in support of their contentions that we erred in holding there was no reversible error in giving appellee's requested instructions, insist that each of said 18, 19. instructions should be set out in full in order that they be not precluded from presenting the correctness thereof upon petition to transfer to the Supreme Court. It is not our purpose to so mold an opinion that the losing party cannot present the correctness of our action to the Supreme Court for review. On the other hand, when we are convinced that no reversible error has been committed, we do not deem it necessary or advisable to unduly prolong an opinion by setting out in haecverba all of a series of instructions. The 18 instructions given at the request of appellee cover about 10 pages of appellants' printed brief. If we set *Page 56 out all of these instructions, it would be necessary to set out some of the other instructions, as the instructions must be considered as a whole. Instructions 2 and 4, defining negligence, are challenged, for the reason that the court did not include therein a definition of actionable negligence, that is, that the court failed to tell the jury that, in order for negligence to be actionable, it must be a proximate cause of the injury. There is no merit in this contention. In instruction 6, given by the court on its own motion, the jury was told that actionable negligence as applied to this case was such negligence, if any, as was "the proximate cause of the death of Bauermeister." This instruction, like instruction 2 given by the court on its own motion, and instructions 3 and 19 given at the request of appellee, and No. 18, given at the request of the city, was more favorable to appellants than they or either of them was entitled to. Technically, each of these instructions was erroneous, in that each of them required appellee to prove that the negligence of which complaint was made was the proximate cause of the death of appellee's decedent, when it was necessary that such negligence be only a proximate cause of such death. Appellants, however, are not in position to complain of such errors.
It is insisted that instruction 14, given at the request of appellee, is in conflict with instructions 12, 23 and 24, given at the request of the railroad. We hold otherwise. The 20. last three instructions are, in substance, as follows: (12) Unless plaintiff established by a preponderance of the evidence that the valve was defective, the railroad was not obliged to discard it or to cease to use it because it was old or had been in use many years, nor could either defendant be charged with negligence from its continued use merely because of its age or the length of time it had been used; in 23, the jury was told that, if the dual connection was, *Page 57 when installed, an appliance in general use by careful persons for controlling the flow of water from one system to another, and was by them generally regarded as safe for such purposes and continued to be generally used by careful persons for that purpose from the time of the installation to the time of the sickness of appellee's decedent, the railroad would not be liable because of its failure to install some other method which might have been safer or better; instruction 24 was quite similar to 23, except that it applied to the city and not to the railroad. Instruction 14, of which complaint is made, related to the conduct of the city, so that the railroad cannot complain of the same.
It was not error to tell the jury that the city was required to exercise reasonable care to have and to permit to be used only such devices as experience had shown were reasonably safe 21. for the purpose for which they were used, in view of all the circumstances connected with the business and dangers to be apprehended, and that, in determining whether the city was negligent in this respect, the jury should consider that question in light of all the facts and circumstances in evidence.
Appellants next contend that we did not give sufficient consideration to instruction 15, and, in support of the contention that the court erred in giving this instruction, say that by it the jury was told the defendants were bound to adopt such devices as would effectually keep the river water from being forced into the city mains, and that such was the absolute duty without any regard to the question of negligence. Appellants are in error in this contention. The court, after telling the jury what the duty of the defendants was in this respect, informed the jury that if it found "from a fair preponderance of the evidence that either of the defendants, or both of them, did not exercise ordinary care in the *Page 58 performance of said duty, and that, by reason thereof," Bauermeister contracted typhoid fever and died therefrom, he being without fault, the plaintiff was entitled to recover. Instructions 18, 19, 21 and 22 are set out with sufficient fullness to present each objection urged against them and need no further discussion.
Rehearing denied.