Perkins v. Vt. Hydro-Elec. Corp.
| Decision Date | 02 October 1934 |
| Parties | PERKINS v. VERMONT HYDRO-ELECTRIC CORPORATION. |
| Court | Vermont Supreme Court |
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Exceptions from Windsor County Court.
Action by Fred V. Perkins against the Vermont Hydro-Electric Corporation. Judgment for plaintiff, and defendant brings exceptions.
Reversed and remanded.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
Warren R. Austin and Austin & Edmunds, all of Burlington, and Ernest E. Moore, of Ludlow, for plaintiff.
Fenton, Wing, Morse & Jeffords, of Rutland, for defendant.
During the flood of 1927 the plaintiff's property, in the village of Cavendish, was destroyed by the waters of the Black river. He has brought this action to recover for his injury of which he claims the negligence of the defendant in the manner in which it constructed a conduit diverting the waters of School House brook, and in the construction of an inadequate dike along the side of its pond in the river, about 1,000 feet from plaintiff's premises, was a co-operative and producing cause. The flood itself is conceded to have been of such unprecedented dimensions and destructive character that it was an act of God. The defendant is a corporation engaged in the business of generating and selling electric power, and, at the time in question, maintained a dam, pond, and power house at Cavendish.
At the village of Cavendish the Black river flows in an easterly direction and turns sharply to the north, passing through a narrow defile known as Cavendish gorge. Just at the turn, and at the entrance to the gorge, was the defendant's dam and pond. The village lies to the north and west of the river, Main street, on the easterly side of which the plaintiff's house was situated, being roughly parallel to the river and turning to the northeast as the river entered the gorge. Between the street and the gorge there was a riage, called in the record the Hogback or the Kame ridge, which at some distance northerly of the plaintiff's premises turned to the northwest; the highway passing through it by means of a cut. Beyond the highway the ridge appears to be known as School House hill. A brook, called "School House brook," flowed from the northeast, and at one time crossed Main street by means of a culvert and then, turning to the south and passing through the plaintiff's land east of his house and between it and the Hogback, emptied into the defendant's pond. About a year before the events in issue, in pursuance to an agreement between the plaintiff and certain other property owners and the defendant, the latter diverted the course of the brook to the northeast by means of a system of Toncan iron pipes or conduits. A 48-inch pipe, laid underground, received the water of the stream at an intake, equipped with gratings, at a point northwest of the street, and passing under and along it, conducted the water to a concrete catch-basin, situated on the easterly side of the road beyond the Hogback. Another pipe, 24 inches in diameter, for the purpose of taking the surface water, was laid from a point in the rear of the plaintiff's premises, along the original course of the brook, until it joined the course of the 48-inch pipe, from which point it was laid in the same trench, but underneath the larger pipe, until both pipes reached the catch-basin. From the basin, a 36-inch pipe extended to an open ditch, through a swamp; the water being finally discharged into the Black river below the gorge. At the lower end of the 36-inch pipe, where it reached the open ditch, there was a concrete anchor. At the point where the brook originally joined the pond a dike was erected, the details of which will be described later. The general situation and the location of the various landmarks may be seen in the subjoined plan, Plaintiff's Exhibit 1, introduced at the trial without objection. The plaintiff's house is the one marked 10 thereon.
During the afternoon and evening of November 3, 1927, the waters of School House brook and Black river, swollen by a long-continued rain of great intensity, overflowed their banks. The diversion system washed away, the soil about it having been eroded by the action of the water, and a trough or ditch was thus formed from the highway easterly to the outlet of the 30-inch pipe. The flood water filled the lowland lying easterly of Main street and westerly of the Hogback, and, having risen above the level of the highway where it passed through the Hogback, flowed to the east along the line of the erosion, thus creating a current, the action of which undermined and swept away the plaintiff's house and property. It is the plaintiff's claim that the negligent construction of the diversion system caused the erosion along the line of the pipe which, in turn, created a sluiceway through which the water rushed with great velocity; and that the dike was built at a height below the level of previously known high water in the Black river.
At the close of the plaintiff's case, and again at the close of all the evidence, the defendant moved for a directed verdict The motion was overruled and an exception taken. This is the first question for our consideration. The motion is based upon twenty distinct grounds, but it is not necessary to recite them, because they will all receive attention in the following opinion.
The law governing the determination of the issues presented by this exception is well settled. Where damages suffered are due, directly and exclusively, to natural causes, without human intervention, which could not have been prevented by any amount of foresight, pains, and care reasonably to be expected, there is no liability, because it is an act of God. But, if the damages are not due exclusively to such natural causes, in other words, if the negligence of the one sought to be charged mingles with the operation of the natural causes, the injury is not, in a legal sense, the act of God. So, if the injury which the flood occasioned might have been avoided or prevented by human prudence, foresight, pains, and care reasonably to be expected from the defendant, but not exercised, there is liability. Town of Bennington v. Fillmore & Slade, 98 Vt. 405, 421, 130 A. 137; Porter Screen Mfg. Co. v. Central Vermont Ry. Co., 92 Vt. 1, 11,102 A. 44; Eagan v. Central Vermont R. Co., 81 Vt. 141, 145, 69 A. 732, 16 L. R. A. (N. S.) 928, 130 Am. St. Rep. 1031; Zeno's Bakery v. State of Vermont, 105 Vt. 370, 166 A. 379, 382. The negligence of the defendant must, however, be an active and cooperating cause of the damage. Town of Bennington v. Fillmore & Slade, supra, page 423 of 98 Vt., 130 A. 137; Porter Screen Mfg. Co. v. Central Vermont Ry. Co., supra. "The mere existence of negligence which is not a producing cause of the injury creates no liability." Helbling v. Allegheny Cemetery Co., 201 Pa. 171, 174, 50 A. 970. It must not be "a merely fanciful or speculative or microscopic negligence which may not have been in the least degree the cause of the injury." Baltimore & O. R. Co. v. School District, 96 Pa. 65, 70, 42 Am. Rep. 529; Kenney v. Kansas City, P. & G. R. Co., 74 Mo. App. 301, 308. So, if the act of God is so overwhelming as of its own force to produce the injury independently of the negligence of the defendant, the latter cannot be held responsible. Helbling v. Allegheny Cemtery Co., supra; City of Piqua v. Morris, 98 Ohio St. 42, 49, 120 N. E. 300, 7 A. L. R. 129; James v. Kansas City, P. & G. R. Co., 69 Mo. App. 431, 439, 440; 1 Shearman and Redfield on Negligence (6th Ed.) par. 39.
The principle involved is simply that of causation. Except where there are joint tortfeasors, "a defendant's tort cannot be considered the legal cause of plaintiff's damage, if that damage would have occurred just the same even though defendant's tort had never been committed." Prof. Jeremiah Smith, "Legal Cause in Actions of Tort," 25 Harv. Law Rev. 303, 312; Id. 103, 109. In an article entitled "Multiple Causation and Damage," by Chief Justice Peaslee, of New Hampshire, 47 Harv. Law Rev. 1127, the learned author points out that, where two causes concur in producing damage, one innocent (as, for example, the operation of natural forces) and the other guilty (as, the doing of a negligent act), and each is of itself suffticient to work the injury without the concurrence of the other, there should be no liability. Page 1130. The point is illustrated in Sowles v. Moore, 65 Vt. 322, 26 A. 629, 21 L. R. A. 723, wherein it appeared that the defendant negligently omitted to erect guards around a hole in the ice on Lake Champlain. The plaintiff's team of horses, having taken fright, became unmanageable, ran away, plunged into the opening, and were drowned. The presiding judge submitted to the jury the questions whether the horses would not have run into the opening, if it had been properly guarded, and whether the guards, if there, would have stopped the team, considering their fright and speed, and charged that, if the guards would not have prevented the casualty, the plaintiff could not recover, even though he was in the exercise of due care and the defendant was negligent. It was held that the instructions were "fully sustained both by reason and authority." All this, however, is only stating, in other words, the rule that, in order to justify a recovery, the defendant's negligence must form what is usually called a proximate cause, but which may more accurately be termed an efficient and producing cause of the injury.
On the question whether there was negligence, it is material to consider the consequences that a prudent man might...
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