Nevins v. the City of Peoria.

• Decision Date: 30 April 1866
• Citation: 41 Ill. 502,89 Am.Dec. 392,1866 WL 4629
• Parties: MORTIMER NEVINSv.THE CITY OF PEORIA.
• Court: Illinois Supreme Court

41 Ill. 502

1866 WL 4629 (Ill.)

89 Am.Dec. 392

MORTIMER NEVINS

v.THE CITY OF PEORIA.

Supreme Court of Illinois.

April Term, 1866.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. S. L. RICHMOND, Judge, presiding.

This was an action on the case brought in the court below, by Mortimer Nevins against The City of Peoria.

The cause was tried before the court and a jury, and a verdict returned for the defendant, and a judgment was entered accordingly.The plaintiff thereupon took this appeal.

So much of the facts of the case as is necessary to an understanding of the decision will be found in the opinion of the court.The principal question presented arises out of instructions given to the jury on behalf of the defendant, which assume that a city is not liable for any injury done to individual property holders by grading the streets of the city, even though the injury could have been avoided by the use of proper care in the construction of culverts, gutters and other means for controlling the flow of water.

The plaintiff below, the appellant here, controverts that proposition.

Mr. H. GROVE and Messrs. COOPER & Moss, for the appellant, presented these points:

The city of Peoria is a municipal corporation, with large powers conferred upon it for the public good, but to be exercised with due regard to private rights and property; and for negligence, unskillfulness, careless or wanton disregard of private rights and interests in the exercise of any of its powers, from which injury results to persons or property, it is liable just as individuals.Lacour v. Mayor of New York, 3 Duer, 415;Mayor of New York v. Bailey,2 Denio, 333;Verley v. City of Joliet,35 Ill. 58.

The city owns the streets within the corporate limits, and is responsible for the manner of their improvement; and while it may be discretionary with it when any street shall be repaired or any improvement made, or whether the same shall be done at all, yet, when any such work is undertaken and actually entered upon, the city must see to it that it is done in a reasonable, proper and skillful manner, and with due diligence carried on to completion; and if, for want of proper skill and care in the mode of doing the work, or reasonable diligence in carrying it on to completion, individuals are damaged, the city is responsible.Lacour v. Mayor, etc., 3 Duer, 416; Rochester White Lead Co. v. City of Rochester, 3 Comst.469;The City of Dayton v. Pease,4 Ohio St. 80;City of Pekin v. Newell,26 Ill. 323;Roberts v. City of Chicago,Id. 251;Allen v. City of Decatur,23 Id. 334;Ross v. City of Madison, 1 Carter, 281;McCombs v. Town Council of Akron,15 Ohio, 474;Rhodes v. Cleveland,10 Id. 159;Thayer v. City of Boston,19 Pick. 511;Stetson v. Faxon,Id. 147;Barron v. Mayor, etc., of Baltimore,2 Am. Jur. 203;7 Ohio St. 459.

Municipal corporations, any more than individuals, cannot with impunity create or keep up nuisances, whereby the health of people living around is endangered.Chicago v. Robbins,2 Black, 418;Clark v. Fry,8 Ohio St. 359;Ellis v. Sheffield Gas Consumers'Co., 2 Ellis & Black.75;Eng. C. L.p. 767;People v. Corp. of Albany,11 Wend. 543;Storrs v. The City of Utica,19 N. Y. 105;Stetson v. Faxon,19 Pick. 147;Thayer v. City of Boston,Id. 511.

The city of Peoria had no right to interfere with and obstruct the natural and customary flow of the water from the high grounds above plaintiff's premises, without providing some safe and competent outlet for it to pass off.And when it did undertake to divert its regular and customary flow, it was bound absolutely so to control and manage it, that injury would not result to individuals; and this entirely independent of any plan for public improvement within the city which the common council might see fit in its wisdom to adopt.Rochester White Lead Co. v. City of Rochester, 3 Comst.465; Ross v. City of Madison, 1 Carter (Ind.) 281;Allen v. City of Decatur,23 Ill. 334;St. Louis, Alton & Chicago Railroad Co. v. Dalby,19 Id. 370.

The work in this case was done by contract, but the city, not the contractor or his servants, is liable.The contract relates to the price per yard to be paid for the work, time and mode of payment, and within which the work shall be done.Next, they provide expressly that it shall be done under the supervision and direction of the city engineer and surveyor, and reserve the right to the city to annul the contract if the work is not prosecuted to satisfaction.It would seem difficult to frame a case where the doctrine respondeat superior is more applicable.Besides, it is believed not to be the law that the city, in the repair of streets, or the prosecution of any public work, can surrender itself and the public and private interests in its charge, to the tender mercies of contractors, whether responsible or irresponsible, and shirk off all responsibility for their acts.If the city has not reserved a right of direction and control, that is itself a plain breach of duty, for which it should be held all the more accountable.Southwick v. Estes,7 Cush. 385;Phila. & Reading Railroad Co. v. Derby,14 How. 469;Storrs v. City of Utica,19 N. Y. 105;Angell & Ames on Corporations, 464, § 388, p. 463, § 387;seeLesher et al. v. Wabash Navigation Co.,14 Ill. 87;Hinds et al. v. Wabash Navigation Co.,15 Id. 77.

Mr. M. WILLIAMSON, for the appellee.

The evidence shows that the work was all done by contractors, under the supervision of the city engineer.If the work was done by a contractor, then the city would not be liable for any negligence or unskillfulness in the performance of the work.This principle is too well settled to admit of controversy.The case of Bush v. Steinman holding an opposite doctrine in England was long since overruled, and in fact was never regarded as law there.Quarnam v. Burnett,6 M. & W. 499;Rapson v. Cubit,9 Id. 710;Milligan v. Wedge,12 A. & E. 737;Allen v. Hayward,7 Q. B. 960;1 E. L.andE. 447;8 Id. 479;16 Id. 442;30 Id. 167;32 Id. 366;37 Id. 495.

This rule is equally well settled in this country.Clark v. Vt. & Canada R. R. Co.,28 Vt. 107;Hilliard v. Richardson,3 Gray, 349;Barry v. City of St. Louis,17 Mo. 121;Blake v. Farris,1 Seld. 48;Pack v. Mayor, N. Y., 4 Seld. 223;2 Mich. 368 and 528;2 Metc. 353;2 E. D. Smith, 254.

The same doctrine is also held in Pennsylvania.In the case of Painter v. Mayor, Aldermen and Citizens of Pittsburgh,46 Pa. St. 221, the court, after a thorough examination of the authorities, both English and American, say the law is well settled both in England and this country, that a municipal corporation is not liable for the negligence or unskillfulness of its contractors, and the rule is established in Kelly v. The Mayor, etc., of New York,1 Kern. 435;Hovey v. Mayo, 43 Maine, 334;32 N. Y. 495;Wilson v. The Mayor of New York,1 Denio, 595;Child v. City of Boston,4 Allen, 51.

But if the proposition, that where the work is done by a contractor, the city is not liable, is not correct, still, in this case, the city cannot be held responsible.

The city was in the exercise of its powers for a purely public purpose, for a governmental purpose, and as a part of the government, and in the exercise of such powers it enjoys the exemption of government from responsibility for its own acts and the acts of its officers deriving their authority from the sovereign power.Vincent v. Sharp,9 La. An. 462;17 Mo. 128;The Mayor, etc., of Baltimore v. Root,8 Ind. 102;Hawthorn v. City of St. Louis,11 Mo. 59;Mills v. The City of Brooklyn,32 N. Y. 489;Wilson v. The Mayor, etc., of New York,1 Denio, 596;City of St. Louis v. Gurno,12 Mo. 418;Mayor of Philadelphia v. Randolph,4 Watts & Serg. 514;Greer v. The Borough of Reading,9 Watts, 382;The City of Vincennes v. Richards,23 Ind. 381;Macy v. The City of Indianapolis,17 Id. 268;Snyder v. The President, etc., of Rockport,6 Id. 237;City of Lafayette v. Spencer,14 Id. 389;16 Id. 441; 4 Green (Iowa), 47; Radcliffe's Executors v. The Mayor and Common Council of Brooklyn, 4 Comst.196.

Mr. JUSTICE LAWRENCEdelivered the opinion of the Court:

In 1861, the city of Peoria caused the grade of a part of Main street, running along the bluff, to be raised, and some other work to be done, for the purpose of directing the flow of water from the west side of Main street, which was its natural channel, to the east side, and through a new channel to the river, thus improving its drainage.The appellant had, at that time, a water-cure establishment in operation on the east side of this part of Main street, and he claims that the work undertaken by the city was badly and carelessly done and never completed, and that, in consequence thereof, his house and grounds were flooded at every considerable rain with mud and water, and that a stagnant pond, covering from one to two acres, was formed within a short distance from his house, rendering it unhealthy, and ruining his business.To precisely what extent the proof shows the plaintiff to have been injured, or on what basis his damages should be assessed, if assessed at all, are questions which have not been discussed by counsel, nor considered by the court.They are immaterial on the present record.On the trial of this cause, which was an action on the case brought against the city for these alleged injuries, the court refused all the instructions asked by the plaintiff, and gave all those asked by the defendant, and the jury found a verdict of not guilty.The plaintiff's instructions are based upon the theory, that if the city, by want of proper care, skill or diligence, has done him an injury in grading its streets, it must respond in damages.The defendant's instructions assume that the city is not liable for any injury done to individual property-holders by grading the streets, even though the injury could have been avoided by the use of proper care in the construction of...