9 Colo. 554 | Colo. | 1886
The first proposition advanced in behalf of the city is that, “from the record in this case, it is apparent that the well-settled principles of law have been violated again that a plaintiff might have judgment against a municipal corporation.” Our first inquiry will be, What are these well-settled principles of law which have been so violated? for no judgment thus secured, whether for or against a municipal corporation, can be permitted to stand. One of the prominent grounds of complaint is stated in the appellant’s second assignment of error, viz.:' “The said court erred in overruling and denying the motion of this appellant for a nonsuit when this appellee had rested his case on the trial thereof.” We may reasonably expect, therefore, to find in this, motion, as filed, a statement of some of these well-settled principles which, in the opinion of counsel, were violated on the trial of this cause.
Referring to the motion, its propositions may be formulated as follows: (1) Assuming the facts to be as shown by the plaintiff’s witnesses, and that the condition of the work caused the damages complained of, the city is not liable, because it was, by its contractor, legally and properly constructing a sewer, when an unusual flood of water occurred. (2) A municipality is the representative of the public, and when engaged in the construction of a sewer is doing a public work for the public benefit, and is therefore not subject to the rule of liability which obtains as to private corporations and individuals. (3) No one is liable for damages caused by an unusual flood of rain, because there is no negligence in failing to provide therefor, (é) If there was negligence or wrong in the prosecution of the work, it was on the part of the contractor and not of the city. (5) There was no wrong on part of the contractor, unless it be inferred from his refusal to break down some boards at the time of the rainfall, which might have prevented the injury, and for this the city is not liable.
(a) A preliminary inquiry arises as to the manner in which the work was being done, and what precautions were being taken to guard -against injury to property in the vicinity. It is asserted by defendant’s counsel that the assumed reason assigned by the trial judge for denying the motion for nonsuit, and for submitting the cause to the jury, did not exist, and he appeals to the testimony of plaintiff’s witnesses to sustain his assertion. The reason assigned by the court was that “ there was evidence tending to show that, at the time of the extraordinary rain, the entire street was obstructed, so there could be no flow of water down either side.” Was this a misrepresentation of the testimony tlien before the court?
The first witness called by the plaintiff was O. H. McLaughlin, who was at the time president of the city council. Upon the point in question he testified that the embankment of earth on either side of the trench which had been excavated across Fifteenth street was from two to three feet high; that the water in the center of the square above was over his boot-tops, and that he saw no provision made for the flowing of waters through the gutters; that the work should have been fínishéd up by
The testimony is all positive on the point that the water was dammed up below the plaintiff’s premises at the trench, and caused to flow back and submerge his sidewalk, and to flow down through the openings therein into the basement and areas, so as to fill them full. We do not hesitate, in view of this testimony, to affirm the statement of the trial judge that there was testimony tending to show that the entire street crossing was obstructed during the rain, so there could be no flow of water down either side.
(b) Was this a legal and proper construction, across an; improved street, of an under-ground pipe-sewer? The' general rule of law laid, down by many respectable am. thorities, and adopted by this court, concerning the obstruction of water-ways, is that municipal corporations cannot be compelled to provide water-ways of sufficient; capacity to carry off all surface waters likely to accumulate in the streets; but such as the city has provided it shall keep in repair and free from obstructions, so that, up to their original capacity, they shall be efficient. City of Denver v. Capelli, 4 Colo. 25; Nims v. Mayor, 59 N. Y. 500; Shear. & R. Neg. § 151. The rule of law that there is no implied liability for damages necessarily occasioned by the construction of a municipal improvement is held to be subject to the qualification that a liability arises for all damages not necessarily incident to
2. The point raised, that the city was engaged in the construction of a public work for the benefit of the public, and for that reason was .not liable for damages, is not correct either as to the proposition of fact or of law, if by the terms “public ” and “ public work” the public generally and a work in which the state is interested be
Nor is the further proposition maintainable, that a different rule of liability exists where a work of this character is being constructed by a municipality from that applicable toan individual, in a similar case. When a municipality undertakes such a work, it is bound to exercise the same degree of care and prudence a cautious individual would do if the whole loss or risk were his own; and it is liable, like an individual, for damages resulting from negligence or omission of duty. Shear. & R. Neg. § 144; Harper v. City of Milwaukee, 30 Wis. 372; Barton v. City of Syracuse, 36 N. Y. 54. It is held that a municipal corporation is not liable to an action for a failure or neglect to make corporate improvements, such as grading streets, making drains, sewers, and the like, for the reason that such powers are quasi judicial and discretionary, to be exercised as the public interest may require. It is likewise-held that such corporation is not liable for an error of judgment in adopting an injudicious plan, or one of insufficient capacity for the purpose intended. But there is great unanimity in the
3. The proposition that no one is liable for damages caused by an unusual flood of rain, because there is no negligence in failing to provide therefor, if correct as to any class of circumstances, does not justify the total obstruction of a street so improved that no damage would have been suffered if proper passages had been left for the escape of the water. We know of no rule of law or legal principle which can be invoked in support of this third proposition which will make it applicable to the facts and circumstances of this case. An “ unusual flood of rain ” does not indicate a greater or more severe rain than has theretofore occurred, but rather such a rain as does not usually, or but rarely occur.
The rule is laid down in Mayor v. Bailey, 2 Denio, 440, 441, that in the construction of a public work which may ' be called upon to resist sudden freshets, like a dam across a stream of water, the degree of care or foresight which it is necessary to use must always be in proportion to the
In Powers v: City of Council Bluffs, supra, it was relied on as matter of defense that the rain-fall which occasioned the damage was an extraordinary one. Witnesses testified that many severe rain-storms had occurred in the vicinity; and defendant’s counsel admitted that two storms had occurred, one seventeen and the other six years previously, which were about equal in force and violence to the one in question. The court held it to have been the duty of the city to make provision for such floods as may be expected, judging from such as had previously occurred.
In City of Denver v. Capelli, 4 Colo. 29, error was assigned upon an instruction informing the jury, in substance, that such a rain-fall as had not been of frequent, but had been of occasional, occurrence within the knowledge of persons then living in the city, could not be said tobe the act of God; and that, if said rain-fall might have reasonably been anticipated from past experience, no matter how great or violent, the defense based thereon must fail. The only error pointed out by the court in reviewing this instruction was that the court thought it was “so worded as to create the impression upon the minds of the jury that it was thexluty of the defendant, possessed of the knowledge that extraordinary rain-falls
As before stated, the rule in this state is that, while no legal obligation rests upon a municipal corporation to provide water-ways of sufficient capacity to protect the property of citizens from overflow and damage, yet such as have been provided must be kept in repair, and free from obstructions. This rule is subject to the right of the city to make necessary municipal improvements in a prudent and skilful manner, although the work may 'cause a partial obstruction of an improved street. In the present case the evidence on the part of the plaintiff tends to show that the work of constructing the sewer across the street was carelessly and injudiciously performed; also that the street improveihents were of sufficient capacity to have protected the property from damage, if the work had been properly conducted. The shower which occasioned the damage in the present instance was a severe one, but it is only necessary to refer to the testimony on this point, which was produced on part of the defendant, to see that it was by no means unprecedented. Frank M. Neal, the signal officer in Denver, said it was unusual, but he thought the amount of rain or hail which fell in the month of May preceding was equal or greater, but it was in the form of ice, or wet, heavy snow. Thomas Williams, a brother of the contractor, said he never saw such a rain in all his life. Richard Sopris, then mayor of the city, and who had resided therein twenty-four years, on being asked what kind of a rain it was with reference to the rains in this country, answered: “Well, it was a harder rain than we usually have had in Denver, and the heaviest part of it fell south of this locality.” On cross-examination he was asked whether he had known of other rains that
In view of the evidence, we think the severity of the rain-storm did not constitute a defense to the action.
4. The next defensive position assumed is, if there was negligence or - wrong in the prosecution of the work, it was on the part of the contractor, and not of the city. Two points appear to be relied upon in support of this proposition: First, that the legislature, by an act passed in 1879, had required the work to be let by contract to the lowest bidder; second, that the person to whom the work was let was an independent contractor; consequently the city was not liable.
The answer sets out that a system of sewerage was provided by an ordinance duly passed and adopted in conformity with the legislative act just referred to, which, among other things, provided for the construction of the sewer in question across Fifteenth street; that a contract for its construction was let to one Joseph Williams, who was prosecuting the work thereunder at the time of the rain-fall. The legislative act mentioned was an enabling act amendatory of the city charter; and, while it required contracts of this character to be let to the lowest responsible bidder, it did not divest the city authorities of control over the contractor and the work. The specifications of the contract, introduced by the plaintiff, show that the city retained a supervisory control over the work. It was to be performed under the direction of the city engineer and the city sewer committee. Power to make alterations • in the manner, extent and plan of the work, as it progressed, was reserved, as was also authority to annul the contract, and to relet the work to another contractor in case Williams failed to
Was Williams an independent contractor? It is elementary that the doctrine of respondeat superior does not extend to independent contracts; that is to say, to such contracts as leave the party for whom the work is to be done no choice in the selection of the workmen and no control over the manner of doing the work under the contract. Clearly, this case does not come within the principle stated. The city had complete jurisdiction and control of the streets, sidewalks, sewers and public works and municipal improvements generally, with power to adopt systems and plans for the construction of all improvements, and with a supervisory control over the work of construction. In such cases the.primary re-' sponsibility rests upon the city'to keep its improvements in repair and in an effective condition. For negligence in the performance of these duties, resulting' in injury to the persons or property of citizens, the corporation must respond in damages, provided the parties injured are free
The last point raised and relied upon in support of the alleged error in denying the motion for nonsuit is that the city cannot be held liable for the refusal of the contractor to break down certain boards placed in the sewer-trench for shoring purposes, which, if done, might have prevented the injury. It is insisted that what occurred at this time was collateral to and independent of the course of the work. This is not a legitimate point in the case, and is not and cannot be assigned for error, for the reason that the court, at the' request of the defendant, instructed the jury in accordance with the counsel’s view as above expressed.
For. the reasons assigned, we are of opinion that no error was committed in denying" "the motion for a non-suit.
We now pass to another defense, styled in defendant’s brief, “ The law concerning surface water.” If we correctly interpret the proposition, it is that the condition of the work in progress, and the obstruction of the streets and sewers, was not the direct cause of the injury to plaintiff’s property, but it required an unusual and unparalleled rain-fall, and the gathering of an unusual amount of surface water, to connect them in the remotest degree. Another allegation is: “He who has property where surface water, in a great rain-fall, may reach it, is unfortunate, whether he be negligent or not. Those who would escape it must flee to the high hills or mount
It is a recognized rule of law' that there is no implied liability for damages necessarily occasioned by the construction of any municipal improvement authorized by law; yet if there be negligence or want of skill in its execution, a liability arises for damages thus unnecessarily incurred. The result of Judge Dillon’s inquiries concerning injury thus occasioned by surface water is to the same effect. It is that municipal corporations have a right to bring their streets to grade, and are not ordinarily liable for simply failing to provide culverts or gutters adequate to keep surface water off from adjoining lots below grade; but that they are liable where the property of private persons is flooded, either directly or by water being set back, where this is the result of the negligent execution of the plan adopted for the construction of gutters, drains, culverts or sewers, or of the negligent failure to keep the same in repair and free from obstruction, whether the lots are below the grade of the street or not; and he says there is great unanimity in the cases in support of these principles. 2 Dill. Mun. Oorp. § 1051.
It is alleged in the answer, and proof to support the defense was produced on the trial, that the immediate cause of damage to plaintiff’s property was the defective construction of the areas under the sidewalks in front of the building occupied by him, together with the openings made in said sidewalks to supply light and for a passageway to said areas. These were purely questions of fact, and were fairly submitted as such to the jury trying the cause. The jury did not sustain this defense, and we are
We fail to discover any error sufficient to reverse this judgment. Judgment affirmed.
Affirmed.