Harford County Com'rs v. Wise

• Decision Date: 10 December 1891
• Citation: 23 A. 65,75 Md. 38
• Parties: COUNTY COM'RS OF HARFORD COUNTY v. WISE ET AL.
• Court: Maryland Court of Appeals

23 A. 65

75 Md. 38

COUNTY COM'RS OF HARFORD COUNTY v. WISE ET AL.

Court of Appeals of Maryland

December 10, 1891

Appeal from circuit court, Cecil county.

Action by Sarah A. Wise, by and with her next friend and husband George Y. Wise, against the county commissioners of Harford county, Md., for the destruction of a mill-dam. Judgment for plaintiffs. Defendants appeal. Reversed.

Argued before ALVEY, C.J., and BRYAN, MILLER, IRVING, FOWLER BRISCOE, and MCSHERRY, JJ.

Albert Constable, James W. McNabb, and William Young, for appellants.

John S. Wirt and Clinton McCullough, for appellee.

MCSHERRY J.

The appellee sued the county commissioners of Harford county to recover damages for the destruction, by reason of the alleged negligence of the defendants, of a mill-dam owned by her. The dam had been swept away by a flood upon a former occasion, and it was then alleged that the negligent and unskillful location and construction of a county bridge across Deer creek had so narrowed the water-way as to cause the bridge to be lifted from its abutments, and to be thrown upon the dam, whereby the latter was demolished. That case is reported in 71 Md. 43, 18 A. 31. Subsequently the dam was reconstructed and the bridge was rebuilt, the bridge being elevated somewhat higher above the surface of the stream, and the span being made considerably longer than formerly. In 1886 a trestle, consisting of heavy timbers, securely fastened together, was carried down the current, and lodged against and upon the new dam. This obstruction remained upon the dam for several weeks, and was then removed. The persons who removed it were obliged to cut away some of the logs forming the ties of the dam, whereby the structure was materially weakened. No attempt was made by any one to repair the dam after it had been thus weakened. There is not a particle of evidence in the record having the least tendency to show that the county commissioners were responsible either for the trestle lodging on the dam or for its removal. Indeed, there is nothing to connect the commissioners in the most remote manner with the weakening of and consequent direct injury to the dam. Shortly after the strength of the dam had been thus impaired a freshet occurred in the stream, and the dam was washed away. The first part which yielded was the portion weakened in the way just pointed out. It was proved by some of the plaintiff's witnesses that this cutting of several of the ties of the dam was the direct cause of its giving way. The first count of the declaration was founded upon the theory that the defendants were responsible for this cause; but the evidence, as we have said, wholly failed to connect them with it. It was further proved by the plaintiff that the bridge, as reconstructed by the county commissioners, was unskillfully and negligently located and constructed, whereby the current, in times of high water, was made more rapid and dangerous; that, in consequence of this alleged negligence of the appellants, the water was thrown with greater violence and concentration upon the dam; and that thereby, during a freshet in the opening of 1886, the dam was washed away and demolished. The second count of the declaration was based upon this theory. Here, then, were two distinct causes relied on by the plaintiff as having produced the injury.

To which of these two is the injury attributable? The declaration does not allege that both combined occasioned it. Each is alleged in a separate count to be an independent cause. The first of them the court below instructed the jury the appellants were not responsible for, and that ruling is not open for review or question on this appeal. A case is thus presented where the injury complained of must have resulted from one or the other of two distinct causes, and not from both together; and where, if produced by the one the appellants are not liable, though they are answerable if produced by the other. If the evidence adduced by the plaintiff does not show to which one of these two causes the damage done is actually due, can a recovery be had? In cases like this the burden is on the plaintiff to prove that the defendant has been guilty of negligence, and that such negligence has occasioned...