Rice v. City of Evansville
| Decision Date | 16 October 1886 |
| Docket Number | 11,688 |
| Citation | 9 N.E. 139,108 Ind. 7 |
| Parties | Rice v. City of Evansville |
| Court | Indiana Supreme Court |
From the Vanderburgh Superior Court.
Judgment affirmed.
J. E Williamson, for appellant.
J. B Rucker, for appellee.
The appellant seeks a recovery against the city of Evansville for injuries to his property caused by overflows, which he charges resulted from the wrongful and the negligent acts of municipal authorities. The general verdict was for the appellee, and with it the jury returned answers to interrogatories submitted to them.
It is found by the jury, in answer to special interrogatories, that there was no negligence in devising the plan of the sewers or in constructing them, and as it is to these sewers that the appellant attributes his injury, he can not recover solely upon the ground that the sewers were of insufficient capacity. A municipal corporation is responsible for negligence in devising the plan of a sewer, as well as for negligence in carrying the plan into execution, but it is not responsible for mere errors of judgment. If the inadequacy in the size of a sewer is owing to the omission to exercise ordinary skill and care in planning and performing the work the municipal corporation is liable, but if the inadequacy of the sewer is attributable to a mere error of judgment, there is no liability. City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821; City of Crawfordsville v. Bond, 96 Ind. 236; City of Evansville v. Decker, 84 Ind. 325 (43 Am. R. 86); Cummins v. City of Seymour, 79 Ind. 491 (41 Am. R. 618); Weis v. City of Madison, 75 Ind. 241 (39 Am. R. 135); City of Indianapolis v. Huffer, 30 Ind. 235.
The controlling question in cases where the municipal corporation is sought to be made liable for injuries from overflows is: Was there negligence on the part of the municipal corporation in devising the plan of the sewer or in carrying it into execution? For if there was no negligence there is no liability, although an error of judgment may have caused the corporate authorities to provide a plan for a sewer of inadequate capacity. There may possibly be cases where the court could say, as a matter of law, that the inadequacy of the sewer was such as in itself to constitute negligence, but, however this may be, it is very clear that with the general verdict and the special answers of the jury against the appellant, the court can not declare that the city was guilty of negligence in this instance.
It is contended that the facts found by the jury show that the city wrongfully obstructed a natural watercourse by constructing a culvert of insufficient size, and that where a natural watercourse is obstructed the corporation is liable for resulting injuries, although it may not have been guilty of negligence. Upon the strength of this argument the appellant claims that he is entitled to a judgment on the special findings, but we can not uphold this claim, for, if it were granted that there was a natural watercourse, and that a culvert was constructed of insufficient size, still there can be no recovery, because all the facts essential to a recovery are not found, and because the answers are not absolutely irreconcilable with the general verdict. It is found that there was no negligence, and that the culvert is of less capacity than the watercourse was, but how much less is not found. The record thus exhibits the finding: Question. "How much less capacity has the sewer than the watercourse?" Answer. "Don't know; there was no evidence on that point." In the face of the general verdict, and in view of the fact that the burden of proof was on the appellant, it can not be asserted that his case is made out, for it may well be that the capacity of the sewer was so little different from that of the natural watercourse as not to perceptibly obstruct the flow of water. As against the general verdict, it can not be presumed that there was a material obstruction of the watercourse. Nor does it appear from the answers that the culvert caused the overflows; for anything that appears, the overflows may have occurred more often before than after the construction of the culvert. Nor does it appear that the incapacity of the culvert was the proximate cause of the overflow of appellant's property, and it is well settled that it must appear that the wrong of the defendant was the proximate cause of the injury which is alleged as the cause of action. Cincinnati, etc., R. W. Co. v. Hiltzhauer, 99 Ind. 486.
It is the rule that a special verdict must state all the facts essential to a recovery, and that nothing can be supplied by intendment. Dixon v. Duke, 85 Ind. 434; Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187; Redelsheimer v. Miller, 107 Ind. 485, 8 N.E. 447.
It is also the settled rule, that if facts are not found in a special finding they will be presumed, as against the party who has the burden of proof, not to have been proved. Mitchell v. Colglazier, 106 Ind. 464, 7 N.E. 199; Krug v. Davis, 101 Ind. 75.
If these are the rules where there is no general verdict, much stronger is the reason for the rule which obtains in cases where there is a general verdict adverse to the party who asks a judgment on the special finding of the jury. Where there is a general verdict against the appellant, certainly neither presumption nor intendment in his favor can be made for the purpose of awarding him a judgment. Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88, 3 N.E. 627. The facts found by the jury in this case, even if there were no general verdict against appellant, would not warrant a judgment in his favor on the ground assumed in the argument we are here discussing, and with the general verdict confronting him, it is legally impossible for him to succeed. The plaintiff, who has the burden of proof in a case where a general verdict is against him, is in a much worse situation than his adversary, for all the facts essential to a recovery must appear in the answers of the jury, and they must be irreconcilable with the general verdict; while in the case of the defendant, all that need appear is enough to defeat the plaintiff's case, and make a reconciliation between the general verdict and the answers of the jury impossible.
It is also contended by counsel with much earnestness and ability, that, taking all the facts found by the jury into consideration, the court can declare, as matter of law, that the city was guilty of negligence; but, with the general verdict, and some of the answers of the jury adverse to the appellant, this can not possibly be done. Where a plaintiff asks a judgment on the special findings, notwithstanding the general verdict, he will fail unless all the findings are favorable to him, for, if some are favorable and some unfavorable, he cannot escape the force of the general verdict. Redelsheimer v. Miller, supra; Davis v. Reamer, 105 Ind. 318, 4 N.E. 857; Hereth v. Hereth, 100 Ind. 35, and cases cited; Indiana Car Co. v. Parker, 100 Ind. 181, see p. 198.
Applying these settled principles to the case before us, it is quite clear that judgment...
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