Southern Express Co. v. Texarkana Water Co.

• Decision Date: 17 January 1891
• Citation: 15 S.W. 361,54 Ark. 131
• Parties: SOUTHERN EXPRESS CO. v. TEXARKANA WATER CO
• Court: Arkansas Supreme Court

15 S.W. 361

54 Ark. 131

SOUTHERN EXPRESS CO. v. TEXARKANA WATER CO

Supreme Court of Arkansas

January 17, 1891

APPEAL from Miller Circuit Court, C. E. MITCHELL, Judge.

Action on behalf of the Southern Express Company to recover damages for the killing of a horse, occasioned by the negligence of the Texarkana Water Company in filling a trench which it had dug in a public street in the city of Texarkana, for the purpose of laying a water pipe. There was verdict and judgment for defendant. Plaintiff has appealed, and assigns errors in the court's charge.

Judgment reversed and cause remanded.

Scott & Jones for appellant.

The acceptance by the city did not in any manner release the water company from its responsibility from negligence. Authority cannot be given to endanger public safety. The city could not justify against a nuisance created by its officers nor can any one justify against a nuisance created under a license from the city. Wood on Nuisances, 2d ed., sec. 274; Viner's Abr., "Nuisance." The acceptance by the city does not relieve the company. 44 N.Y. 132; 52 Ind. 428. The seventh instruction clearly erroneous. A party erecting a nuisance is immediately liable. 18 Minn. 324; S. C. 10 Am Rep., 184, and cases cited; 21 Barb. 409. Besides it is inconsistent with the eighth instruction. The charge is not harmonious.

Byrne & Jones for appellee.

The proof shows authority from the city; the ditch was dug and refilled in the usual way, all the dirt being replaced. The company exercised reasonable care and caution. This is all the law requires. Whart. on Neg., sec. 816; Thomp. on Neg vol. 1., p. 262; Cooley on Torts, p. 626. To charge the company the proof must be positive and clear that the injury was the unmixed result of the negligent act sought to be charged. 105 N.Y. 202; Thomps. on Neg., vol. 2, p. 762 (note 6.) Before one can be charged with the burden of a nuisance, it must appear that he had some knowledge of it or by the exercise of reasonable care could have known it. 2 Thomps. on Negl., 762, note 6; Lawson, Rights, Rem. & Pr., vol. 3, p. 1759, sec. 1033; 30 Mass. (13 Pick.), 94; 124 Mass. 165; ib., 289; 80 N.Y. 212; 12 N.Y. 486; 51 N.Y. 573; 104 N.Y. 344.

The law does not hold a city as an insurer of the safety of streets, nor does it impose a greater responsibility on a person using the street with the city's permission, nor is one using the streets under a license an absolute insurer of its safety, when he returns the street to the city. 109 N.Y. 134; 77 Me. 287, 2 Th. on Neg., pp. 745, 765, notes.

OPINION

COCKRILL, C. J.

The charge of the court is to be condemned for the reasons pointed out in Davis v. Railway, 53 Ark. 117. All of its parts cannot be made to harmonize. Without dwelling upon the inconsistencies, there is positive error in the seventh instruction given at the instance of the appellee, who was the defendant below, which no incidental explanation in another part of the charge could rectify. In effect it declares that the defendant was not liable for the injury sustained by the plaintiff, even though it was guilty of negligence in filling the trench which caused the injury, if the trench had been suddenly washed out by rains, and the defendant was not apprised of its dangerous condition and could not have known of it by the exercise of reasonable diligence. That construction of its meaning is as favorable for the defendant as ought to be placed upon it.

1. Negligence--Excavation in public street.

If the defendant was negligent in the performance of its duty to restore the street to the condition it was in before the excavation, and by reason thereof the rainfall, which came in the ordinary course of nature, displaced the newly filled earth, then its negligence was the proximate cause of the defect in the street, and it was liable for the resulting injury. "It was...