The Mayor v. Spears

• Decision Date: 28 February 1881
• Citation: The Mayor v. Spears, 66 Ga. 304 (Ga. 1881)
• Parties: The Mayor, etc., of Savannah. vs. Spears.
• Court: Georgia Supreme Court

66 Ga. 304

The Mayor, etc., of Savannah. vs. Spears.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1881.

Municipal corporation. Damages. Negligence. Before Judge Fleming. Chatham Superior Court. March Term, 1880.

Reported in the decision.

H. C. Cunningham, for plaintiffs in error.

R. R. Richards, for defendant.

Speer, Justice.

William Spears brought his action for damages against the Mayor and Council of the City of Savannah, in which he alleged that certain lands of his that he had in cultivation, with growing crops thereon, in the fall of 1878, were overflowed and inundated to the depth of several feet, by the escape of water from the Bilbo canal, a public canal of said city used for drainage purposes; that his crop, of the value of one thousand dollars, had been ruined and destroyed by said overflow and was utterly lost to him. He alleged that said canal had been established, taken and used by said mayor and council as part of their system of drainage in and around said city for the purpose of carrying off into the Savannah river the sewerage and rainfall of said city, and that they were round by law to keep said canal and the dams thereof in good and sufficient repair, strength and height, free from overflow, so as to protect the lands adjacent to the canal, and which it is alleged they failed to do, whereby the damage resulted, etc.

To this action defendants pleaded the general issue, and under the evidence submitted and charge of the court, the jury returned a verdict for plaintiff for one thousand dollars damages. The defendant below made a motion for a new trial on the following grounds:

(1.) Because the judge erred in his charge, in that while he charged, as requested by the defendant in writing, asfollows: "If you find that the Bilbo canal was a reasonable and proper structure for the purpose for which it was intended, and that reasonable care was taken in its maintenance by the city, and nothing was done negligently or carelessly to cause damage to the plaintiff, and no damage occurred except in an extraordinary fall of rains, or freshet, then the plaintiff is not entitled to recover"—which request the court modified as follows: " Now there is no particular objection to this charge in some of its particulars, but I think it proper to add, if you find storm and rain and freshet don\'t ordinarily occur in the fall of the year." " My idea is this (referring to another part of the request about a prudent man taking care of his own property): my idea is that a prudent man taking care of his own property will have reference not only to what occurs from day to day and week to week, but continue that ordinary care at certain seasons of the year, and if high tide and storm ordinarily occur at the time this happened, it is one of the things against which the party ought to provide."

(2.) Because the judge erred in his charge to the jury, in that while he charged, as requested by the defendant in writing, as follows: "The only care in maintaining the banks of the canal that it was the duty of the city to take, was such care as every prudent man takes of his own property of a similar nature. In other words, the city was only chargeable with ordinary diligence in taking care of and using said canal, and if you find that said city did exercise ordinary diligence in taking care of and using said canal, then the plaintiff cannot recover;" the court modified said request by adding: " If in addition to that, you find that the dams were sufficient." " It is not that they took proper care of the dams they had, but did they have a sufficient dam? If they did, and took sufficient care of it. they would not be responsible for acts of Providence. But whether storm in the fall of the year is an act of God, which does harmto no one (as the law says), although it would be extraordinary in reference to other seasons of the year, that it would be ordinary in reference to the particular season when it happened, is a question\' for you to determine."

Other grounds that the verdict...