102 Cal. 663 | Cal. | 1894
The plaintiff brought this action against the defendants to recover damages caused by
Upon the issue whether the damage sustained by the plaintiff was caused by the acts of the defendants, the evidence before the jury was conflicting, and their verdict in her favor must be accepted as determinative of that question. There was also a great deal of evidence presented to the jury, by both parties, for the purpose of showing the manner in which the work of repairing the sewer was done by the defendants, and, from the character of this evidence, we cannot say that the jury was not justified in finding that the work was done in an unskillful and unworkmanlike manner. The jury were instructed by the court, that if they were satisfied, from a preponderance of the evidence in the case, that the defendants performed their duty in a negligent and unskillful or unworkmanlike manner, and that the injuries sustained by the plaintiff were directly caused by such negligence, she was entitled to recover, but that if they were not satisfied that the defendants performed:
The court instructed the jury that, although it was the duty of the superintendent of streets to attend to the repairing of sewers, yet, if he undertook to make any such repairs, he must do it in a careful and skillful manner, and would be liable for any damage resulting from his negligence in making such repairs; that his claim to have done such work in his official capacity would not relieve him from responsibility for such damage, if he did the work in an unskillful or negligent manner. The jury were further instructed that, if the cost of making the repairs exceeded one hundred dollars, the superintendent had no jurisdiction to do the work, and that the defendants would be liable for the damage sustained by the plaintiff, unless, after they undertook to repair the sewer, they worked skillfully and diligently. The effect of this latter instruction was to place the acts of the superintendent in making the repairs on the same footing, in the contingency supposed, as any other person making the repairs. The instruction was given in view of the act of March 27, 1878 (Stats. 1877-78, p. 544), by which the superintendent is given authority, in cases of urgent necessity, to repair any of the public streets or sewers, either by contract or otherwise, provided that the repairs between two main streets shall not exceed one hundred dollars. In the absence of this statute the superintendent would have no authority to make the repairs, and, if he would justify his acts, he must bring himself within the terms by which the authority is given. The instruction itself is in harmony with those previously given, in which, the rights and liabilities of the superintendent are defined, as the jury were merely told by this the con
We find no error in the record, and the judgment and order denying a new trial are affirmed.
Garoutte, J., and Van Fleet, J., concurred.