Taylor v. City of Austin
| Decision Date | 30 June 1884 |
| Citation | 20 N.W. 157,32 Minn. 247 |
| Parties | Calvin W. Taylor v. City of Austin |
| Court | Minnesota Supreme Court |
This action was brought in the district court for Mower county, to recover damages alleged to have been caused by the negligence of defendant in failing to keep its sewers in repair. The action was tried before Farmer, J., and a jury, and plaintiff had a verdict for $ 78.92. Defendant appeals from an order refusing a new trial.
Defendant's seventh request, referred to in the opinion, was as follows viz.: "If the plaintiff or his employes, after the first flow of water into the cellar, permitted his goods that were liable to injury to remain in the cellar, and they were thereby further damaged or injured, he is guilty of contributory negligence and cannot recover for any damages to said goods."
No other points require consideration, and the order denying a new trial should be affirmed.
J. M Greenman, for appellant.
Lafayette French and D. B. Johnson, Jr., for respondent.
Plaintiff recovered a verdict for damages against the defendant on account of its alleged breach of duty in suffering a sewer or drain in one of its public streets to remain out of repair and obstructed, so as to cause plaintiff's cellar to be flooded with water, and his goods damaged. It is not material to inquire when or by whom the sewer was originally constructed, as it is not disputed that the city had assumed its control and management. It was therefore its duty to use reasonable diligence to keep it in proper repair. Shartle v. City of Minneapolis, 17 Minn. 284, (308;) Moore v City of Minneapolis, 19 Minn. 258, (300;) Phelps v. City of Mankato, 23 Minn. 276.
2. Under plaintiff's allegations that the defendant negligently suffered the sewer to become obstructed on or about April 12, 1883, and refused and neglected to remove such obstructions and put the same in repair, in consequence of which plaintiff's cellar was overflowed with water and his goods damaged, and he was deprived of the use thereof for 90 days thereafter, it was proper for the court to allow evidence that on several occasions, within a few days subsequent to that date, the cellar was so flooded with water from the same cause, both for the purpose of showing the nature and extent of the injury and the neglect of the defendant, whose officers, as the evidence tended to show, had actual notice of its condition at the time.
3. The street commissioner, one Garrity, testified, on the part of the defendant, as to the condition of the sewer at the time in question. On his cross-examination he was interrogated in reference to his admissions and declarations made to one Fisher in reference to the cause of the obstruction thereof; and thereafter Fisher was called and examined by plaintiff upon the subject of Garrity's admissions, with the view of impeaching his credibility, and was asked this question: "Now, at that time, did Mr Garrity state to you that that (the rubbish) was what caused the obstruction to the...
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