OPINION OF THE COURT BY JUDGE BURNAM—AFFIRMING.
Appellant in this suit charges that the brick walls of his warehouse and carriage factory have been greatly damaged by water flowing from certain sewer and waste pipes unlawfully constructed by appellees for the purpose of conducting from their premises the surface and waste water accumulating thereon. Appellees deny that appellant's property has been damaged through any negligent or unlawful act on their part, and allege, by way of defense, that the house occupied by appellant stands on lower ground than theirs, and that the natural flow and drainage from the premises occupied by them is in the direction of and against plaintiff's house. They allege that the building occupied by appellant is across the mouth of an alley, in the rear of their premises, and that the city of Hopkinsville many years since caused a brick sewer to be built along the side of plaintiff's house, for the purpose of conducting surface water from the premises occupied by appellees and others to the main sewers of the town, and that the water
from the waste pipe emptied into this sewer; that appellant had made no efforts to protect his walls, but that, on the contrary, he had, by means of a gutter, conducted all of the water that fell on the north side of his house into the same sewer. It is further alleged that the surface and waste water from all of the lots fronting on Main and Seventh streets was conducted into the sewer pipe which led into the alley, and that the water from their premises constituted only a small proportion of the total amount which flowed through this pipe. The trial resulted in a verdict and judgment for defendants. Appellant complains that both were flagrantly against the weight of evidence, and that the trial court erred in the instructions given to the jury, and in refusing those asked for by appellant.
The instructions given to the jury are as follows:
"(1) The court says to the jury that if they believe from the evidence that the defendants, or either of them, collected the waste water from their said business house, or the surface water from their lot, into pipes or ditches, and thus conducted the same on or against the house of appellant, and thereby the walls, floors, and joists of his house were damaged, then, in that event the defendants would be liable to the plaintiff for any actual damage he sustained by reason thereof, not exceeding the amount claimed in the petition. Given. Thomas P. Cook, Judge.
"(2) The court instructed the jury that, if the natural flow of water is on or over the lot of plaintiff, then it would be the duty of the plaintiff to protect himself against such natural flow of surface water, and the defendants would not be liable for any damage caused by such surface water, unless they so collected or changed its natural flow in such a way that the same flowed against appellant's
house in unusual quantities, or out of the natural way, and by reason of such collecting or change of flow the same was damaged as alleged in the petition. Given Thos. P. Cook, Judge.
"(3) The court further says to the jury that, if they believe from the evidence that the plaintiff is entitled to recover in this action then they will find such damages only against the party who caused the same, as set out in instruction No. 1. Given. Thos. P. Cook, Judge.
"(4) The court further says to the jury that they can not in this action find against the defendants, or either of them, for any damages which accrued more than five years before the filing of this action, nor for any damages caused by others than defendants. Nine of the jurors may find a verdict in this case; but, if all do not agree to such verdict, then those so agreeing must sign it. Given. Thos. P. Cook, Judge.
As to each and every one of said instructions the plaintiff objected, and, the objections being overruled, excepted at the time, and still excepts.
And thereupon came the plaintiff, by attorney, and offered the following written instructions, to-wit:
"(a) The court instructs the jury that it is not necessary that the defendants should have done all the damage sustained by the plaintiff, if any, before they can be held liable, but if the plaintiff has sustained damage by reason of the negligent location of water pipes, by and through which quantities of water were from time to time collected and conveyed to, against, or under the plaintiff's building, and the walls, beams, joists, or floors of the same were damaged and injured thereby, and the defendants, or either of them, contributed to the said damage in any degree by connecting water pipes therewith and
conveying water through the same, then such defendant or defendants would be liable for damage, although he or they have contributed to the same a comparatively small extent. If, therefore, they believe from the evidence that the defendants, or either of them, within the time and at the place alleged in the petition, so carelessly and negligently constructed, located, or used drainage, waste, or water pipes, or permitted such pipes to be so located, constructed, or used, or connected any drainage, waste, or water pipes with any pipes so located, constructed, and used, as to collect, carry, and convey water to, against, or under plaintiff's carriage buildings, whereby his brick walls, floors, sills, or beams, or any of them, have been injured or damaged, or rendered unsafe or unhealthful, then such defendants or defendant are liable to the plaintiff for whatever damage he has sustained thereby, if any, without regard to the quantity of water that may have passed through defendants' said pipes, if any, from defendants' premises, provided the water passing through such pipe from defendants' premises contributed in any degree to the damage complained of, if any; and, in that event, the jury must find for the plaintiff the entire damages he has sustained during the period of five years prior to the bringing of this action, not exceeding the amount claimed in the petition. Refused. Thos. P. Cook, Judge.
"(b) The court instructs the jury that if they believe from the evidence that the defendants, or either of them, exclusive of other persons, or in connection with others, did, within five years before the commencing of this suit, so carelessly construct or use their water pipes, either by themselves or in connection with other persons, if any, who had connected their water pipes therewith, as to collect and to convey water up to, against, or under plaintiff's said
building in such quantities as would naturally dampen, rot, and damage, age or injure plaintiff's said building, and the plaintiff was in fact damaged thereby, then such defendant or defendants would be liable in this action for the full amount of plaintiff's damage so caused, provided that he or they in any degree contributed to such damage or injury, if any, whether intentional or not. Refused. Thos. P. Cook, Judge.
"(c) The court further instructs the jury that they are not to consider any evidence showing, or tending to show, that plaintiff's carriage building might have been constructed so as to protect it from the flow of water conveyed against it by means of the sewers or other artificial means. Such evidence is not competent to be heard in this case for any...
