Piqua v. Morris

• Decision Date: 02 April 1918
• Citation: 120 N.E. 300,98 Ohio St. 42
• Parties: The City Of Piqua v. Morris Et Al.
• Court: Ohio Supreme Court

120 N.E. 300

98 Ohio St. 42

The City Of Piqua v. Morris Et Al.

Supreme Court of Ohio

April 2, 1918

Negligence - Act of God - Proximate cause - Superior force and concurrent negligence - Floods - Embankment breaks - Charge to jury.

1. The proximate cause of a result is that which in a natural and continued sequence contributes to produce the result, without which it would not have happened. The fact that some other cause concurred with the negligence of a defendant in producing an injury, does not relieve him from liability unless it is shown such other cause would have produced the injury independently of defendant's negligence.

2. In the construction and maintenance of a hydraulic, or similar work, a municipality. or other owner, is required to use ordinary skill and foresight to prevent injury to others in times of floods to be reasonably anticipated; and if injury is caused by the negligence of such owner, he is liable in damages, provided his negligence is one of the proximate causes of the injury, although it concurred with other causes, including the act of God.

3. In order to fix liability on an owner in such case, it must be shown that his negligence concurred with the act of God in causing the injury; but if the act of God, such as an extraordinary flood, was so overwhelming and destructive as to produce the injury, whether the defendant had been negligent or not, his negligence cannot be held to be the proximate cause of the injury.

4. Where from a consideration of the whole charge of the court it is seen that the jury has been given a comprehensive and intelligent instruction concerning the issues and the application of technical terms used, the fact that a particular term is also used in a special charge, or in other parts of the general charge, without such explanation, should not be held to be erroneous.

CERTIFIED by the Court of Appeals of Miami county.

The defendants in error brought a suit in the common pleas of Miami county against the city of Piqua to recover damages for its negligence in flooding and injuring their farm by washing away soil and gravel and destroying a roadway, gates and fences, by the breaking of a bank of a hydraulic opposite the farm and from the rush of a large volume of water down and over it.

The petition alleges that the city owns what is known as "Piqua Hydraulic," which affords water for its waterworks system within the boundary of the city; that in order to maintain at all times a sufficient supply of water the hydraulic has a series of ponds of many acres in area in which to collect surplus waters, and that one of them, known as "Swift Run" pond, lies adjacent to the plaintiffs' lands and buildings thereon, with an embankment about 30 feet high on the west thereof; that in order to take off the surplus water that accumulates or might accumulate in said "Swift Run" pond, in times of heavy rains and high waters, there was constructed on the east bank of said pond a spill-way containing 16 openings, 30 inches square, each provided with a gate or wicket; that said openings were of sufficient width and size to carry off through the same at all times all the surplus water that might accumulate in said pond and to keep and confine the water therein and prevent any overflow; that about 5 years ago the defendant rebuilt the timber part of the spillway and neglected to provide wickets for 4 of said openings; that prior to and on the 25th of March, 1913, defendant had negligently and carelessly permitted all of the re- maining 12 openings, and the gates or wickets, to become and remain out of repair; that by reason thereof they would not permit more than one-half of the amount of water to pass through as if in proper condition, and that on said day all of said 12 gates were permitted to remain closed and the water was negligently caused and permitted to rise above the normal stage; that on that day a heavy rain fell which flooded the pond so that it overflowed its banks; that the water flowed to and passed over and on the plaintiffs' premises, which were east of and adjoining the embankment and lower, and injured them by washing away about 6 acres of dirt and gravel to a depth of 5 to 10 feet and doing the damages above stated; and that the embankment had become weakened because of negligence of the defendant.

The plaintiffs further alleged that if the defendant had cut a trench in said embankment at the county line, instead of where it was cut, the damage would not have been caused to the plaintiffs.

In its answer the city denied all the allegations of negligence contained in the petition, denied that the spillway contained 16 openings, but averred that it contained 12 gates or wickets.

For a second defense, the city stated that on March 25, 1913, and prior thereto, there occurred all over the state of Ohio including Miami county, a heavy and extraordinary rainfall in excess of and beyond anything occurring in said city and state within the memory of the oldest inhabitant of said city; that the water in the hydraulic, and in all the streams and ponds contributing to its water, rose rapidly to a height theretofore unknown and flooded All adjacent lands and streams contributing to said hydraulic and pond and assumed the proportions of an immense and violent flood, breaking away dams and bridges over streams, including defendant's hydraulic and pond and all streams and divers contributing to its water supply, causing a great and unprecedented destruction to life and property; that the defendant exercised every caution at its command to protect the property of the plaintiffs and the other inhabitants of Piqua; that in the exercise of due diligence and extraordinary care it was unable to prevent the embankment of the hydraulic canal and run from breaking away; and that it was not possible to cut a trench in the embankment at the county line, nor could it have protected plaintiffs' property by cutting the bank 500 feet north of the point at which it broke through. And it alleged that the damages, if any, were occasioned by an act of God.

The reply denies that the damages were occasioned by the act of God and reiterates the allegations of the petition that the negligence of the city directly and substantially contributed thereto.

A jury in the common pleas court returned a verdict for she defendant, and the judgment entered on this verdict was, on proceedings in error, reversed by the court of appeals for errors in the charge of the court.

In its entry the court of appeals certified that it found that the judgment upon which it had agreed in the case was in conflict with the judgment pronounced upon the same question by the court of appeals of Hamilton county in the case of The Standard Extract Co. v. The H. Belmer Co. It therefore certified the record of the case to this court for review and determination.

Messrs. Lindsey & Berry, for plaintiffs in error. Mr. D. B. Van Pelt and Mr. A. W. DeWeese, for defendant in error.

JOHNSON J.

The verdict of the jury was general-all of the issues made by the pleadings were resolved in favor of the defendant. This finding of course embraced the issue tendered in the second defense-that in the exercise of due diligence and extraordinary care the defendant was unable to prevent the embankment of the hydraulic and Swift Run" pond from breaking away; that it was not possible to cut a trench in the embankment at the county line, nor could defendant have protected plaintiffs' property by cutting the bank 500 feet north of the point at which it broke; and that the damages to plaintiffs, if any, were occasioned by an act of God, without any fault or neglect of defendant, its officers or servants.

The downfall of water in March, 1913, has passed into the history of the state as its most extraordinary and disastrous flood. The damage and suffering it caused throughout this and adjoining states is a matter of general knowledge. It was so widespread and so devastating that the legis- lature less than a month after the flood passed what is generally known as the "Flood Emergency Act," 103 Ohio Laws, 760, to authorize the duly constituted authorities of the different subdivisions of the state to...