National Weeklies v. Jensen

Decision Date02 April 1931
Docket NumberNo. 28040.,28040.
Citation183 Minn. 150,235 N.W. 905
PartiesNATIONAL WEEKLIES, Inc., v. JENSEN et al.
CourtMinnesota Supreme Court

Appeal from District Court, Winona County; Vernon Gates, Judge.

Action by the National Weeklies, Inc., against Christ Jensen and the City of Winona. There was a verdict for plaintiff against the defendant city, and, from an order denying its motion for new trial, the city appeals.

Affirmed.

Brown, Somsen & Sawyer, of Winona, for appellant.

Webber, George & Owen, Tawney, Smith & Tawney, and E. D. Libera, all of Winona, for respondent.

DIBELL, J.

Action by the plaintiff to recover damages for the negligent flooding of the basement of its building in Winona. Upon the first trial there was a verdict for the defendant city and its codefendant, Jensen, who was the contractor with the city. Plaintiff's motion for a new trial was denied as to defendant Jensen and granted as to the city. Upon the second trial, the result of which is involved on this appeal, there was a verdict for the plaintiff against the city, and it appeals from the order denying its motion for a new trial. The defendant Jensen was not involved in the second trial and is not concerned with this appeal.

1. In brief it is the claim of the plaintiff that in June, 1927, in improving a street and installing sewers, catch-basins, manholes, etc., the city removed a portion of the stone curb immediately adjacent to the retaining wall of plaintiff's building and also the brick paving in front; that it negligently permitted the basement to remain unprotected from the elements and exposed to the flow of water; that on June 18, 1927, a rain came; and that because of such negligence of the city the basement was flooded. That substantial damage was done is without dispute.

The evidence sustains a finding of negligence. The city exposed the basement to a flow of water from the street. A flood came and there was resulting damage. It is quite unnecessary to state the evidence in detail or describe the physical surroundings of the building and its connection with the street. The jury was justified in finding that the basement was exposed as not before to floods from a storm, and that the defendant should have anticipated that damage might come from what it did or failed to do. The doctrine of Christianson v. Chicago, etc., R. Co., 67 Minn. 94, 97, 69 N. W. 640, 641, is applicable:

"If a person had no reasonable ground to anticipate that a particular act would or might result in any injury to anybody, then, of course, the act would not be negligent at all; but, if the act itself is negligent, then the person guilty of it is equally liable for all its natural and proximate consequences, whether he could have foreseen them or not. Otherwise expressed, the law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen. Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow."

To charge the defendant with negligence, and with liability for the results of it, the plaintiff need not prove that the defendant foresaw the extent of injury which did result. The test of negligence, as indicated in the Christianson Case, is the question of the exercise of ordinary care under all the circumstances, and the test of proximate cause is whether the result followed in unbroken sequence from the original wrong. The cases are collected in 4 Dunnell, Minn. Dig. (2d Ed. & Supp.) § 7002, et seq.

2. If the damage done was solely the result of an act of God, the city was not liable. If the negligence of the city proximately contributing and an act of God combined to produce the result, the city is liable. The rule is stated in 1 Shearman & Redfield on Negligence (6th Ed.) § 39, as follows:

"It is universally agreed that, if the damage is caused by the concurring force of the defendant's negligence and some other cause for which he is not responsible, including the `act of God' or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage * * *".

In 4 Dunnell, Minn. Dig. (2d Ed. & Supp.) § 7007, the Minnesota rule is stated as follows:

"It has been said that `if damage is caused by the concurrent force of defendant's neglect and some other cause for which he is not responsible, including an act of God, he is nevertheless liable if his negligence is one of the proximate causes of the injury complained of, even though, under the particular circumstances, he was not bound to anticipate the interference of the intervening force which concurred with his own.' Where several concurring acts or conditions, one of them a wrongful act or omission, produce an injury, such wrongful act or omission is to be regarded as the proximate cause of the injury, if it be one which might reasonably have been anticipated from such act or omission, and which would not have occurred without it."

The supporting cases are cited in the notes. The case of Bibb Broom Corn Co. v. Atchison, etc., R. Co., 94 Minn. 269, 102 N. W. 709, 710, 69 L. R. A. 509, 110 Am. St. Rep. 361, 3 Ann. Cas. 450, is illustrative. There broom corn was damaged in the course of transportation. There was extraordinary rainfall constituting vis major. The court said:

"As a general rule, applicable to all cases of negligence, if damage is caused by the concurrent force of defendant's neglect and some other cause for which he is not responsible, including an act of God, he is nevertheless liable if his negligence is one of the proximate causes of the injury complained of, even though, under the particular circumstances, he was not bound to anticipate the inference of the intervening force which concurred with his own."

3. The city claims that the storm of June 18, 1927, was unusual in severity and something the like of which had not occurred before in Winona; and that in the language of the law it was an act of God or vis major for the results of which it is not liable; and it seriously urges that the court incorrectly charged relative to the burden of proof of the character of the storm and its liability for what it claims was the consequence of vis major. In its answer it said:

"Admits that on or about June 18th, 1927, plaintiff sustained some injury to certain property of plaintiff located upon said plaintiff's premises on account of water, but denies that such injury was due to any negligence or want of care on the part of said city, and alleges that such injury was due to an unprecedented cloudburst which occurred suddenly, without warning, which could not have been foreseen in the exercise of ordinary care on the part of either of these defendants, and which was and constituted an act of God."

The court charged at length and accurately upon the defendant's negligence. It charged over and over that if the defendant could not have anticipated in the exercise of reasonable care that such a flood as came would come it could not be charged with liability for not guarding against its results; and that it was not liable for the consequences of vis major. It charged:

"The defendant further claims that plaintiff's damage was caused by an extraordinarily heavy...

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