Pickerill v. City of Louisville, &C.

• Decision Date: 22 March 1907
• Citation: 125 Ky. 213
• Parties: Pickerill v. City of Louisville, &c.
• Court: Kentucky Court of Appeals

125 Ky. 213

Pickerill v. City of Louisville, &c.

Court of Appeals of Kentucky.

March 22, 1907.

Appeal from Jefferson Circuit Court; Common Pleas Branch (Second Division).

THOMAS R. GORDON, Judge.

Judgment for defendants. Plaintiff appeals. Reversed.

W. O. BRADLEY Attorney for Appellant.

COPYRIGHT MATERIAL OMITTED

HELM, BRUCE & HELM for Appellee. L. & N. R. R. Co. B. D. WARFIELD of Counsel.

DODD & DODD for Appellee Bolt and Iron Co.

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OPINION OF THE COURT BY JUDGE SETTLE — Reversing.

The appellant, S. C. Pickerill, owns a house and lot on the east side of Jones street, in the city of Louisville. He complains that from March 12, 1903, to July 20, 1904, the lot in question was subjected to overflows from surface water which backed upon it in large and unusual quantities and to a depth of several feet, on account of which his coalhouse, stable, and privy upon the premises could not be reached or used by himself or family during much of the time during the year mentioned; that these inundations of the lot made his fence fall and decay, caused the vault of the privy to overflow, and its contents to be scattered over the premises, which, with the stagnant water and other excrement and filth brought thereon by the overflows, created bad odors, bred disease, and endangered the health of his family. For the above-enumerated injuries suit was brought by appellant in the court below against the appellee city of Louisville, the Louisville & Nashville Railroad Company, and the Louisville Belt & Iron Company. The petition set forth with great particularity the foregoing facts, charged that the overflows of appellant's lot and consequent injuries were caused by the joint and several negligence of the appellees, and that he had been damaged thereby in the sum of $500, for which he prayed judgment against them. It was also averred in the petition that when and before appellant's house and outbuildings were erected by him on the lot the drainage was good, and no inconvenience or damage was experienced by reason of the collection of water thereon; that at that time the Louisville & Nashville Railroad Company had a ditch on its right of way, running from K street southwestwardly to P street; that there was a sewer from a point south of K street to N street, and from Third street to N street, emptying out near his property on N street between Jones street and the property of the railroad company, its exit at that point being accommodated by an open ditch, which connected with the ditch on the right of the railroad company, and by these ditches and sewers the surface water upon appellant's lot and adjacent territory was naturally and properly carried away, and prevented from collecting on or flooding his premises. That appellee Louisville Belt & Iron Company wrongfully, unlawfully, and without appellant's consent, made an excavation in Jones street, north of N street, so as to carry the water from Jones street halfway on the street to the end of the lots fronting on the east side of Third street from M street to N street, and toward the property of the railroad company, in an opposite direction from that in which the water had theretofore run and been drained, thereby greatly increasing the volume of water that flowed to the right of way of the railroad company at N street, the effect of which was to fill or stop up the ditch of the railroad company, prevent the escape of a large volume of water, and cause it to be diverted from its usual course and flow back upon and inundate appellant's premises. It was further averred in the petition that after the excavation referred to, and before the building by the belt and iron company of a roadway to its property, the appellee railroad company constructed for the belt and iron company two switches with side tracks from the premises of that company to the railroad company's tracks, one connecting with the railroad company's track at a point north of N street, and the other connecting with its track between N and P streets; that, while these switches and side tracks were constructed at the cost of the belt and iron company, they are jointly used by it and the railroad company, and are kept in proper repair by the latter company; that culverts were made under the switches and side tracks when they were constructed by the railroad company, but they were and are too small to allow passage to the large volume of water that ought to go through them, and so negligently constructed that they soon became obstructed and closed, thereby causing the water to back upon, overflow, and stand on appellant's lot; that such backing of the water and overflow of appellant's lot was greatly aggravated and added to by the acts of the belt and iron company in dumping its slag and cinders on, around, and under the switches and tracks in question, and that these wrongful acts of both the railroad and the belt and iron companies were committed and done with the knowledge and approval of appellee city of Louisville. The petition contains the additional averment that the overflow of and injury to appellant's lot was contributed to and augmented by the acts of appellee city in so negligently constructing K, L, and O streets between Third and Fourth streets, and laying a small tile pipe through the curbing on the east side of Third street and connecting with the railroad ditch, as to divert the surface water from, where it was naturally accustomed to flow, and cause it to form a pond near his lot, from which, and the insufficient sewers, it backed upon and overflowed the lot; that the several obstructions wrongfully and negligently erected and maintained by appellees jointly and severally, and which caused the overflow of appellant's lot, can readily be removed or remedied by them, and culverts and drains provided for carrying off the surface water and thereby preventing it from backing on and overflowing his lot and causing injury to his property, but that appellees and each of them have failed and refused, and still refuse, to do anything to remedy the evils complained of, and are all equally guilty in continuing them. Appellee Louisville & Nashville Railroad Company, insisting that the petition contained a misjoinder of parties and actions, entered a motion to require appellant to elect, and appellee belt and iron company filed a general demurrer to the petition. The motion and demurrer were overruled. Thereupon appellees, separately answering, specifically denied the material allegations of the petition. Appellee belt and iron company, in addition, admitted that it "raised the foundation and elevation of the ground upon which its plant was constructed," but averred that it did so "only to the extent necessary to enable it to make use of said land, and construct said improvements in such manner as to prevent the surface water from passing in, upon, and over its lot as improved." The trial resulted in a verdict and judgment for the appellees. Appellant was refused a new trial, and by this appeal seeks a reversal of the judgment complained of.

It is not our purpose to discuss in detail the evidence heard by the jury, except to remark that there was practically no conflict as to the flooding of appellant's lot by surface water, or as to the nature and extent of the injuries thereby caused the property. But as to the further questions of whether the overflows were caused by the alleged negligent acts of appellees complained of, and the extent to which each contributed thereto, the testimony was very conflicting, and much of it apparently irreconcilable. That of appellant strongly conduced to prove that the overflow of and consequent injury to his property was caused by the negligence of appellees and each of them in the particulars alleged in the petition, and that there was such privity and connection between them and their acts of negligence contributing to the injury of appellant's lot as to make them joint tort-feasors, and therefore jointly as well as severally liable in the action. On the other hand, the testimony of appellees' witnesses just as strongly conduced to prove that the overflow and resulting injury to his property complained of by appellant were not due to the alleged acts of appellees, or any of them, but to the fact that his lot and the adjacent lots and streets, being near much standing water in ponds, made them peculiarly liable to such overflows, and that appellant's lot was subject to periodical overflows before any of the acts of appellees complained of were done or committed, which was known or ought to have been known to appellant when and before he purchased the lot or erected the buildings thereon; furthermore, that what was done by the city of Louisville in opening and constructing the streets and ditches and laying tiling contiguous to appellant's lot was necessary to relieve the streets and property situated on same of the surface water; that this work was performed in the usual and a proper manner, and without throwing any more water on appellant's lot than had theretofore been accustomed to flow thereon; also that the making of the fills, switches, and side tracks by the Louisville & Nashville Railroad Company and the belt and iron company were necessary for the proper conduct of their business and to...