OPINION BY MR. JUSTICE MUSMANNO, March 17, 1964:

On December 31, 1961, the home of the plaintiffs in this case, Robert A. Doyle and his wife Frances P. Doyle, was destroyed by fire. The destruction could have been averted if the Pittsburgh Fire Department, which had responded to the fire alarm, could have obtained water from the fire hydrants, of which there were at least five in the immediate area of the house. None would yield a stream of water for the hoses ready to carry the extinguishing element to the flames which began small but eventually leaped to proportions which engulfed and consumed the dwelling.

On September 18, 1962, the plaintiffs filed in the Court of Common Pleas of Allegheny County a complaint in trespass against the South Pittsburgh Water Company averring that it was under contract to provide water for fire hydrants in the vicinity of their dwelling and to maintain those hydrants for use in emergencies for the sole purpose of fighting fires in and about the vicinity of the plaintiffs' home. The complaint charged the water company with certain acts of negligence which individually or collectively caused the destruction mentioned. The water company filed preliminary objections in which it simply said that the plaintiffs had failed to set forth a cause of action upon which relief could be granted, and moved for an order dismissing the complaint. The court sustained the objections and entered judgment for the defendant. The plaintiffs have appealed.

In their complaint the plaintiffs enumerated the items of negligence attributed to the defendant. Since the defendant demurred, the averments in the complaint will be accepted as established fact. The complaint states that the defendant allowed the water in the crucial hydrants to freeze so that they became useless for fire-fighting emergencies; that it failed to inspect the hydrants, failed to maintain sufficient pressure in the hydrants, failed to replace or repair inoperative valves and, inter alia, failed to notify the plaintiffs or the Pittsburgh Fire Department that the hydrants were inoperative.

In arguing before this Court, the water company asserts that it was not the lack of water which destroyed the plaintiffs' home — t was the fire. This is like saying that a person who starves to death dies not because of lack of food but because of physical debility. The plaintiffs specifically charge in their complaint that had the defendant supplied water, their home would not have gone up in flames. This is the charge the defendant must answer to and nothing is gained by the elusive debating dialectic that it was the fire and not the lack of the drenching element which caused the loss of which the plaintiffs complain.

In attempted support of its argument that the lack of water was too remote to be a proximate cause for the plaintiffs' losses, the defendant cites the case of Grant v. Erie, 69 Pa. 420, and says: "The basic and fundamental issue before your Honors is what is the proximate cause of plaintiffs' loss, the fire or the failure of water? This precise question was answered by this Honorable Court in the case of Grant v. Erie, 69 Pa. 420, where it was clearly held that the proximate cause of the damage was the fire and the remote cause was the lack of water."

In that case the municipality of Erie was authorized by the burgess and councils of the borough " 'make and establish a sufficient number of reservoirs to supply water in case of fire.' " The reservoirs were erected but were allowed to fall into decay and, as a consequence, properties belonging to the plaintiff were destroyed by fire because there was no water in the reservoirs to extinguish the flames. The appellee here says in its brief that this Court, in the Erie case, said: " 'In this case it was neither the reservoir nor the amount of water in it that caused the fire. It was caused by something else than that, and whether the ultimate loss was caused by the want of water leads us too far into the region of possibility and conjecture to enable any one to say, with any certainty, that such loss can be traced directly to the want of water." Emphasis supplied by appellee's counsel.)

In offering this quotation, appellee's counsel reveals more resourcefulness than discovery because this Court did not make any such statement. The cited quotation was taken from the charge of the trial court which was not approved by this Court. In fact, this Court said much to the contrary of that alleged by the appellee, namely, "The purpose of the reservoir being to extinguish fires, and the fire having been shown not to have been extinguished in consequence of the non-performance of the duty imposed, it would be no answer, perhaps, to say that the proximate cause of the injury was the fire, and the want of water only the remote cause. If it were made the duty of a municipality to station a police officer at a particular corner, to protect the foot-passengers from being run over by passing vehicles, it may be doubted whether it would be an answer to an action, to say that the cause of the injury was the horse and wagon and not the absence of the officer." (Emphasis supplied here.)

The decision in the Erie case turned on a factor entirely absent in this case, namely, that the municipality was given only a discretionary authority to build the reservoirs and, therefore, no legal duty was imposed on it to build the reservoirs.

In the case of Eagle Hose Co. v. Elec. Light Co., 33 Pa. Super. 581, a fire horse, belonging to the plaintiff hose company, was killed when it stepped on an electric wire after an arc lamp, to which the wire was attached, fell to the ground because the lamp had been held in place by a hemp rope which had been consumed by the conflagration the fire company was fighting. The plaintiff contended that in using a rope, instead of a fireproof device, the electric company committed an act of negligence which resulted in the horse's death. The trial court entered a nonsuit against the plaintiff, asserting that the proximate cause of the injury was the burning of the rope, due to a casualty which the defendant was not reasonably bound to foresee. The Superior Court reversed, declaring: "While the burning building may be treated as an inevitable accident so far as the defendant company is concerned, in that they were not in any manner identified with the cause of the fire and had no control over it, it may at least be treated as an intervening agency which brought into dangerous prominence that which a jury might find was a negligent act of the defendant, and so combined with it as to cause the plaintiff's damage. If this should be so determined against the defendant company it will be sufficient ground on which to base a verdict in the plaintiff's favor. . . . The precautions which were reasonably necessary to protect the arc lamp in its place, and whether the company failed to adopt an appliance which was recognized as safer than the one he had had in use, and was well known to be of such a character, and in general use in the community prior to the happening of this accident, was a question for the jury."

Similarly in the case at bar, the question as to whether the water company used appropriate care in maintaining the water hydrants so they would not freeze or otherwise become inoperable was a question of fact for the jury.

Did the water company, by failing to properly maintain the hydrants, create a perilous condition? Certainly it could never be said that the fire was an unforeseeable event. Unfortunately, fires are always possible, and the purpose of a fire hydrant, like a Minute Man, is to be ready for fires at all times. It would be wholly unrealistic to say that the water company was not to anticipate the likelihood of a fire, in which event its failing to keep the hydrants and their appurtenances in proper repair could result in the very loss which occurred and in the very manner it occurred. Thus, the defendant cannot avoid liability merely by asserting that the fire and not the defendant's negligence was the proximate cause of the plaintiffs' loss. What was said in Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 11, applies here: " ' " 'One who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the innocent act of a third party may have contributed to the final result.' And when there are two contributing acts, it is not proximity in time that determines which of them is the proximate cause of the resulting injury:" Mars v. Meadville Telephone Co., 344 Pa. 29, 31. . . . In determining whether an intervening force is a superseding cause, the Supreme Court in Hendricks v. Pyramid Motor Freight Corp., 328 Pa. 570, 574, stated: "The answer to this inquiry depends on whether the (intervening) conduct was so extraordinary as not to have been reasonably foreseeable, or whether it was reasonably to be anticipated . . ."

" ' "The question of what is the proximate cause of an accident is almost always one of fact for the jury:" Ashby v. Phila. Electric Co., [328 Pa.] 479; Helmick v. South Union Twp., 323 Pa. 433, 439; Murray v. Pittsburgh Athletic Co., 324 Pa. 486, 493; Restatement, Torts, sec. 447.' "

The defendant company next contends that it owed no liability to the plaintiffs because it was under no duty to supply them with water. To support this thesis it cites the case of Thompson v. Springfield Water Co., 215 Pa. 275, where this Court stated that since the municipality there involved had no duty to supply water to the plaintiffs, its agent, the water company, acting for and in behalf of the municipality, similarly had no such duty. We need not say whether under similar facts that decision would today be followed. It is sufficient to state that in the Thompson case, the Court proceeded on the theory that undertaking the task of supplying water to the plaintiff, as in Grant v. Erie, supra, was discretionary with the municipality and that therefore it could not be held liable for failing to exercise a discretionary duty.

The plaintiff's claim in the Thompson case was based on the insufficiency of available hydrants near the plaintiff's property and the Court viewed the claim as being one of a breach of duty to supply water. Here the situation is entirely different. The plaintiffs are not relying on the defendant's breach of duty to supply water but on its breach of a duty to use reasonable care in the operation and maintenance of a water system which the defendant had in fact set up in the vicinity of the plaintiffs' property.

Thus, the water company is not charged with the failure, through the municipality, to perform an act, which the court in the Thompson case said was a discretionary act. The municipality here did exercise its discretion and no one challenges that exercise. As a result of the fulfillment of that choice of action, hydrants were actually set up in the vicinity of the plaintiffs' property — five of them. Hence, the situation in the case at bar is far further advanced than the one outlined in the Thompson case. Discretion having been exercised and the physical fact of that exercise having become a fait accompli, reasonable care in the maintenance and repair of the planted hydrants became imperative. The failure to use that care is what the defendants are being charged with, not merely a breach of duty to supply water because of the defendant's contract with the municipality.

The duty which the defendant company owed to the plaintiffs under the facts averred in the complaint arises from the law and not from its contract with the Borough.

The physical situation in the case at bar and the facts evolving therefrom bring this litigation squarely within the rule that where a party to a contract assumes a duty to the other party to the contract, and it is foreseeable that a breach of that duty will cause injury to some third person not a party to the contract, the contracting party owes a duty to all those falling within the foreseeable orbit of risk of harm. The landmark in this field of the law is the well-known MacPherson v. Buick Motor Co., 217 N.Y. 382, where the opinion was written by Judge CARDOZO.

In that case the defendant manufactured an automobile which it sold to a retail dealer who in turn sold it to the plaintiff. While the car was in movement, one of its wheels, being made of wood and defectively constructed, crumbled, and the plaintiff was thrown out of the car and injured.

He sued the manufacturer, Buick Motor Company, which defended on the basis that it had no contract with the plaintiff and therefore owed him no duty. The Court of Appeals of New York rejected this defense and held: "If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of a contract, the manufacturer of this thing of danger is under a duty to make it carefully."

To erect fire hydrants close to dwellings is to assure the inhabitants of those homes that potential fire engines stand guard to fight an invading conflagration. To erect fire hydrants and then not inspect them with some reasonable regularity is like setting sentinels and then offering them no relief or food so that they fall over from exhaustion and thereby become useless as watchful guardians. With fire hazard, unceasing vigilance is not only desirable but mandatory. As stated by Judge CARDOZO in the MacPherson case: "The presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law." (Emphasis supplied.)

The New York Court of Appeals rejected the argument of the defendant that it owed a duty only to the dealer who purchased the car originally: "The defendant would have us say that he [the dealer] was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn from the days of travel by stage coach do not fit the conditions of travel today. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be."

Could the needs of domiciliary life require anything more vitally than proper fire protection? Could anything be more cruelly deceptive than fire hydrants which do not function? Could there be a greater lapse of care than to fail to properly inspect and maintain fire hydrants once they have been established and the community has accepted them as being live guardians and not mere painted cast iron?

The Buick Motor Company in the MacPherson case attempted to draw a distinction between things inherently dangerous and things imminently dangerous. Judge CARDOZO said: "The case does not turn upon these verbal niceties. If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent."

Returning to the proposition that the defendant auto manufacturer was liable to the person who was injured even though it had not dealt with that person, Judge CARDOZO said: "There is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use."

He noted that principle of law had been accepted in England decades before: " 'Whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing.' "

The law of Pennsylvania in this phase of the litigation was enunciated as recently as 1961 in Evans v. Otis Elevator Co., 403 Pa. 13. In that case the plaintiff Evans was injured when a board from the roof of the elevator in which he was riding fell on his head. The elevator belonged to the Sperling Company, Evans' employer, which had a contract with the Otis Elevator Company whereby the latter undertook the responsibility of making periodic inspections of the elevator and accessory equipment. Evans sued the Otis Elevator Company averring that it was negligent in failing to properly inspect the elevator and in failing to notify him of its defective and dangerous condition. Otis defended on the proposition, inter alia, that it owed no duty to Evans, but only to Sperling. This defense was rejected by our Court, Justice BENJAMIN R. JONES stating: "Generally a party to a contract does not become liable for a breach thereof to one who is not a party thereto. However, a party to a contract by the very nature of his contractual undertaking may place himself in such a position that the law will impose upon him a duty to perform his contractual undertaking in such manner that third persons — strangers to the contract — will not be injured thereby: Prosser, Torts, (2nd ed. 1955), section 85, pp. 514-519. It is not the contract per se which creates the duty; it is the law which imposes the duty because of the nature of the undertaking in the contract. If a person undertakes by contract to make periodic examinations and inspections of equipment, such as elevators, he should reasonably foresee that a normal and natural result of his failure to properly perform such undertaking might result in injury not only to the owner of the equipment but also third persons, including the owner's employees: Bollin v. Elevator Construction Repair Co., 361 Pa. 7, 17, 18, 63 A.2d 19, and cases therein cited. The orbit of Otis' duty to third persons is measured by the nature and scope of his contractual undertaking with Sperling and, if, as presently appears, Otis undertook to inspect the elevator at regular intervals, and, if the elevator was in a defective or dangerous condition discoverable by reasonable inspection, Otis would be liable to third persons, regardless of any privity of contract, who might be injured by Otis' failure to properly perform its contractual undertaking of inspection. Such principle finds support in reason, justice and precedent: (citing many cases from other jurisdictions)."

The appellee cites the case of German Alliance Ins. Co., v. Home Water Supply Co., 226 U.S. 220, in support of its position because the Supreme Court of the United States there said: "The courts have almost uniformly held that municipalities are not bound to furnish water for fire protection." But this does not settle the matter here. The quoted matter, with other sentences quoted in the appellee's brief, are merely selected apples out of a barrel which contains other fruit which give to the barrel a wholly different concept of its contents than can be gathered from the one selection made by the defendant company. The Supreme Court did state that there was no duty on the part of the defendant to supply water to the plaintiff because the contract to supply water was with the municipality and not with the public, but it very specifically pointed out that if the failure to supply water had been alleged to be the result of lack of reasonable care in the set-up, maintenance and operation of its water system, the defendant would have been liable: "It is argued, however, that even if, in the first instance, the law did not oblige the company to furnish property owners with water, such a duty arose out of the public service upon which the defendant entered. But if, where it did not otherwise exist, a public duty could arise out of a private bargain, liability would be based on the failure to do or to furnish what was reasonably necessary to discharge the duty imposed. The complaint proceeds on no such theory. It makes no allegation that the defendant failed to furnish a plant of reasonable capacity, or neglected to extend the pipes where they were reasonably required. Nor is it charged that what the company actually did was harmful in itself or likely to cause injury to others, so as to bring the case within the principle applicable to the sale of unwholesome provisions, or misbranded poisons which, in their intended use, would be injurious to purchasers from the original vendee. So that, notwithstanding numerous charges of culpable, wanton and malicious neglect of duty, this suit, whether regarded as ex contractu or ex delicto — is for breach of the provisions of the contract of February 14, 1900, which must, therefore, be the measure of plaintiff's right and of defendant's liability . . .

. . .

"The plaintiff presses these decisions to their logical conclusions and sues — not for negligence in operating the plant, but for breach of the contract of construction. The complaint charges that as a direct consequence of the refusal to lay the pipes, as provided by the contract, there was no plug near enough to extinguish the fire." (Emphasis supplied.)

The appellee here also depends for nonliability on the case of Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, where the Court's opinion was also written by Judge CARDOZO. In that case the plaintiff's property was destroyed because the defendant water company failed to supply an adequate water supply with sufficient pressure to extinguish a fire, even though the plaintiff had notified the water company of the fire. The Court held that there was no liability. It is to be particularly noted in that case that in its complaint the plaintiff alleged that the water company failed to "fulfill the provisions of the contract between it and the city of Rensselaer." (Emphasis supplied.) Here again the claim, entirely different from the one at bar, was predicated on a contract with the involved municipality. No breach of any duty to use reasonable care in the erection, operation and maintenance of the water system was alleged or relied upon. Under these facts, which, of course, are distinguishable from those in the case at bar, Judge CARDOZO held there was no action ex contractu and no action ex delicto for a common law tort because the defendant's conduct was merely negative in withholding a benefit and it was not tortious. Judge CARDOZO sought to distinguish the Moch case from the MacPherson case where there was originally no duty toward the plaintiff but such duty arose because of the defendant's action, stating: "If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward (Bohlen, Studies in the Law of Torts, p. 87). So the surgeon who operates without pay, is liable though his negligence is in the omission to sterilize his instruments (cf. Glanzer v. Shepard, supra); the engineer, though his fault is in the failure to shut off steam (Kelley v. Met. Ry. Co., supra; cf. Pittsfield Cottonwear Mfg. Co. v. Shoe Co., 71 N.H. 522, 529, 533); the maker of automobiles, at the suit of some one other than the buyer, though his negligence is merely in inadequate inspection (MacPherson v. Buick Motor Co., 217 N.Y. 382). The query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good."

He then concluded that there was no liability on the part of the defendant company because: "What we are dealing with at this time is a mere negligent omission, unaccompanied by malice or other aggravating elements. The failure in such circumstances to furnish an adequate supply of water is at most the denial of a benefit. It is not the commission of a wrong."

It must be stated, with some regret, that at this point Homer nodded. Judge CARDOZO, without apparently intending to do so, contradicted what he said in the MacPherson case which, incidentally, he cited with approval in the Moch case. A refusal to deny a benefit may in itself result in the refusal becoming an instrument of harm. Once Judge CARDOZO recognized that the defendant was guilty of a "negligent omission," he admitted that the defendant had committed a breach of duty since negligence is defined in law as a breach of duty. If there was no breach of duty on the part of the defendant, its conduct could be not characterized as a negligent omission, but would be merely an omission that did not amount to negligence.

It will be recalled that Judge CARDOZO said in the MacPherson case: "The presence of a known danger, attendant upon a known use, makes vigilance a duty. . . . We have put the source of the obligation where it ought to be. We have put its source in the law."

Commenting on Judge CARDOZO's decision in the Moch case, Professor Seavey said in 52 Harvard Law Review, 372, 392, that here the distinguished jurist failed to pursue "his accustomed method of facing the realities." Be that as it may, the case before us comes within the principles laid down not in the Moch case but in the MacPherson case since the plaintiffs here alleged a breach of duty of the water company to use reasonable care in making proper inspection of the water hydrants when such inspection would have revealed their defective condition. Even in the Moch case, Judge CARDOZO acknowledged a breach of duty, for, as already noted, he referred to the MacPherson case as an example of where the defendant's inaction becomes an actionable tort "though his negligence is merely in inadequate inspection."

The defendant at bar also cites Reimann v. Monmouth Consolidated Water Co., 9 N.J. 134, where the Supreme Court of New Jersey, with Chief Justice VANDERBILT and Justice HEHER dissenting, held that a private property owner has no action against a water company for failure to provide adequate water to fight a fire. The reasoning in the Reimann case is one which hardly recommends itself as a homily on elementary justice. The Majority Opinion advises those whose houses may be destroyed by fire, either with or without the negligence of the water company that: "There are many companies whose function is to insure against fire, and the property owner may protect himself fully against fire loss by contract with those companies."

This is similar to saying that persons who may be injured as the result of gross negligence on the part of motorists may protect themselves against monetary loss by purchasing accident insurance and, therefore, there would be no need to sue the negligent motorists. A tortfeasor has no right to immunity from liability for his wrongdoing simply because his victim may, by an outlay of money, obtain some measure of relief from the injury done to him by the tortfeasor.

Following to the ultimate the defendant's reasoning in this regard, it could be said that when one suffers illness as the result of the tortious conduct of another, he may not recover because he could have taken out health insurance. That an injured party may obtain insurance does not, under law or by the application of the simplest logic, insulate a tortfeasor from liability for his misconduct.

And then, if householders may buy fire insurance to recoup their fire losses, why may not water companies buy liability insurance to recompense them for what they owe to others who have been injured through their negligence? Railroads, power companies, canal companies, factory, mill and mine owners, and practically every large business concern dealing with the public buy liability insurance. Why should water companies not anticipate the possibility of their negligence whereby, because of the absence of water, an annihilating conflagration could level a town, or, by lack of inspection, the population of a community could be poisoned by contaminated water?

In the New Jersey Reimann case the Majority Opinion said further that if water companies were liable for acts of negligence in failing to supply water to combat fires, many of them would be bankrupted or they would be left "insufficiently financed to meet the general needs of their communities." This is a strange explanation to unfold in a court of law. Responsibility in law does not depend on the thermometer of the tortfeasor's exchequer. Any legal entity which commits a wrong is bound by law to restore the injured person to status quo, to the extent that is possible, regardless of what the malfeasant may have to undergo in accomplishing that act of justice. Equality under the law does not mean parity of bankbooks between the evil doer and his victim. If a company which has committed a palpable wrong cannot meet its responsibilities except by going out of business, it might well be out of business, so far as the general need and general good of the community is concerned.

Something possibly could be said about the practicality of shielding water companies from heavy financial burdens in their infancy as indeed all enterprises aimed at developing the resources of this country and encouraging business got reassuring concessions from government and society in the early days of America, but water companies have left their cradles long ago and must accept adult responsibility as all other public utilities are required to shoulder it. The argument that to insure safety to the public would entail great expense is, and should no longer be, a defense where a duty to life, limb and property is inherent.

Depressing as the reflection may be, it is true nevertheless that the absence of financial responsibility for negligence is to encourage further negligence. To announce to water companies throughout the Commonwealth that no species of indifference on their part, no negligence, no matter how gross, will call for pecuniary answerability is to invite progressive inattention and indifference to protection against the scourge of flame and incendiary invasion.

The immunity which the New Jersey decision promulgates, and on which the defendant principally stands, cannot avail against the most rudimentary test of logic. In several cases decided by our Pennsylvania courts, liability, even on the part of the municipality, for damage done through broken or damaged pipes and hydrants was imposed. If liability attaches to a municipal corporation which is a non-profit entity, it attaches a fortiori to a water company which is strictly a profit-making organization.

In Luterman v. Philadelphia, 396 Pa. 301, the plaintiff's property was severely damaged when water from a broken fire hydrant flooded his premises. The jury found an absence of negligence and this court affirmed the finding, but it in no way suggested that the plaintiff had no right to bring this action.

In McHale v. Throop Borough, 13 Pa. Super. 394, the plaintiff suffered damage to his property when the municipality failed to make adequate repairs to a broken fire hydrant and, as a result, water flowed onto his property. A verdict against the borough was affirmed.

In Boyle v. Pittsburgh, 145 Pa. Super. 325, a verdict against the City of Pittsburgh was sustained when the City failed to repair a broken water pipe which was connected with a fire hydrant on the sidewalk and, in consequence the plaintiff's property was damaged.

In all these cases fire hydrants in one way or another were principal actors. It cannot be argued, therefore, that merely because a hydrant appears upon the scene the company serving that hydrant is immune from liability as a result of a negligent act in connection therewith. Suppose, while a broken hydrant (as a result of the water company's negligence) is cascading water onto the property of A, the building of B, which is next door, catches fire and, because of the damaged hydrant, the fire hoses cannot be attached and B's building burns to the ground. A's property has been flooded with water and he sues the water company and recovers damages for the losses sustained. B's building has been completely destroyed as the result of the same negligence, but, according to the defendant's argument here, B may not recover. Such a bizarre differentiation should not be in the law books to arouse the derision not only of foreign observers, but of all disciples of justice in America. It is a differentiation which could not satisfy the most elementary mind in the kindergarten of logic or the most forgiving person in the Sunday School of legal-moral responsibility.

The Majority Opinion in the Reimann case, further conjuring up disastrous results for water companies if, like everybody else, they are held responsible for their acts of negligence, said: "If such a broad liability as that sought by the plaintiff were established, the ensuing litigation would doubtless be great . . . no one can foretell the degree of confusion which would follow so revolutionary a decision; a decision which would work backward as well as forward; it would unsettle the past as well as be effective in the future."

Throughout the entire history of the law, legal Jeremiahs have moaned that if financial responsibility were imposed in the accomplishment of certain enterprises, the ensuing litigation would be great, chaos would reign and civilization would stand still. It was argued that if railroads had to be responsible for their acts of negligence, no company could possibly run trains; if turnpike companies had to pay for harm done through negligence, no roads would be built; if municipalities were to be financially liable for damage done by their motor vehicles, their treasuries would be depleted. Nevertheless liability has been imposed in accordance with elementary rules of justice and the moral code, and civilization in consequence, has not been bankrupted, nor have the courts been inundated with confusion.

The plaintiffs in the case at hand charge the defendant water company with ignoring the most fundamental standards of safety, thus not only causing the destruction of the plaintiffs' property but endangering the lives of the population of the community. The company knew that water freezes in severe winter weather, yet it made no inspection to make certain that the water in its mains was liquid, it made no inspection to determine whether the valves of the hydrants functioned so that water would pour into the fire-fighting equipment which could any day, hour or minute, be summoned to combat the most dreaded calamity in civilian life. A decision which would allow a water company in such a situation to shrug away its responsibility by not even being required to answer the serious charges brought against it, would be a decision not of law and justice but of arbitrary unconcern for the law as established, it would be an ignoring of justice as understood in America and it would be a defiance of honesty and fairness which is always part of the legal code.

Chief Justice VANDERBILT of the Supreme Court of New Jersey filed in the Reimann case a dissenting opinion which appeals to logic and common sense. He said: " 'Negligence law is common law, and the common law has been molded and changed and brought up-to-date in many another case. Our court said, long ago, that it had not only the right, but the duty to re-examine a question where justice demands it' . . .

" 'We act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice.' "

As to whether the defendant water company would be immune from liability on the theory it was performing a governmental function as servant of the municipality by which it was employed, we need merely note that neither plaintiff nor defendant has pleaded any such master-servant relationship. Moreover, a finding of an independent contractor-principal relationship could be supported by the facts alleged in the complaint. Hence, if there was any immunity to be enjoyed by the municipality, and we need not decide that issue here, it would not be available to the independent contractor, as we clearly stated in Ference v. Booth and Flinn Co., 370 Pa. 400: "It is hornbook law that the immunity from suit of the sovereign states does not extend to independent contractors doing work for the state."

We hold, therefore, that the plaintiffs' complaint does set out a good cause of action against the defendant water company and that the preliminary objections thereto should not have been sustained.

Judgment reversed.