53 Kan. 312 | Kan. | 1894
The opinion of the court was delivered by
The seventy-second question is: “Was the sewer constructed by the city so much too small that, if open and free from obstruction, the surplus water it could not discharge would have set back 1,000 feet to plaintiff’s property and overflowed it, at the time of the high water or flood when the
“Ques. 100. Was the north end of the city’s sewer obstructed at any time? Ans. Yes.”
“Ques. 106. Did said obstruction remain in said sewer until the overflow occurred that injured plaintiff? Ans. Yes.”
These questions were asked by the defendant city, and therefore are not to be wholly ignored. The jury do not appear to have based their general verdict on these findings but they tend to establish a liability on the part of the city.
The seventy-fifth, seventy-sixth, seventy-seventh, seventy-eighth, eighty-second, eighty-third and eighty-fourth findings seem to show the facts and line of reasoning on which the jury founded their general verdict, and are as follows:
“ 75. Did the city do ány act toward, or have any connection with, the construction of the embankment and sewer on the land of the Orchard Place Land Company, which were constructed after the city had built its embankment and sewer for the purpose of grading Tenney avenue? Yes.
*315 “76. If you answer the preceding question in'the affirmative, then state all the acts the city did, and what connection it had with the construction of said embankment and sewer on the land of the Orchard Place Land Company? In locating the sewer and permitting the Orchard Place Land Company to attach their sewer with the city sewer.
“77. Was the building of the embankment and sewer on the lots of the Orchard Place Land Company, after the city had completed its grading of Tenney avenue, a separate and independent act of the Orchard Place Land Company? Yes, with the exception of the locating and building of the sewer.
“78. If the sewer built by . the city was not of sufficient size, state whether the plaintiff was injured by such defect. No.”
“82. Were the injuries suffered by the plaintiff from the overflow of her premises partly caused by acts and omissions of the city, or by separate and independent acts of the Orchard Place Land-Company? Yes.
“83. State whether the injuries suffered by the plaintiff from the overflow of her premises were caused by a defect in the size of the sewer built by the city, which defect prevented the water from being carried off fast enough to prevent an overflow, or whether said injuries were caused by the fact that all flow of water through the sewer was obstructed and prevented. It was the result of the obstruction in the sewer.
“84. State whether the injuries which the plaintiff suffered by the waters standing for a long time on her premises were caused by the sewer being too small, or by all flow of, through the sewer being obstructed. By obstructions in the sewer.” ' -'u?'
These findings were regarded before, and aré now, as placing the plaintiff’s recovery on the ground of the city’s participation in planning the sewer across the Orchard Place Land Company’s land, and the obstruction to the flow, of water caused by the falling in of the work. As we then held, these facts would not sustain a judgment against the city; but if, on the retrial it shall be shown that the action of the city in the construction of its sewer contributed in a substantial degree to the plaintiff’s injuries, and that it is impossible to separate the injury resulting from the wrongful act of the city, if any,
In this case, the court submitted to the jury 119 questions at the instance of the city, 8 more at the request of the Orchard Place Land Company, and 10 for the plaintiff. We think this was an unnecessary and unreasonable cross-examination of the jury. Many of the questions are but repetitions with a slight change of wording. While it is the duty of the court to submit all pertinent questions asked, it is not necessary that repetition be permitted, nor that trivial questions be submitted. One-tenth the number of questions this jury were required to answer, properly framed, would elicit an answer as to every material fact controverted, and would be far more conducive to the orderly administration of justice than, so great a number.
The order heretofore entered, directing judgment on the special findings for the defendant, will be set aside, and the cause remanded for a new trial.
When this case was first here for decision, on account of the prolixity of the special questions submitted and answered by the jury, I did not understand the facts as clearly as when presented upon the reargument. The 137 special questions answered by the jury tend only to complicate the legal questions involved. After a careful reexamination of the record and the authorities, a rehearing, in my opinion, should be granted, and the judgment affirmed. The undisputed facts show that the city of Kansas City, in grading Tenney avenue across Splitlog creek, a natural water course, to the height of 40 feet and to the width of 60 feet, filled up and obstructed the creek so that water could not flow in its usual channel. As a substitute for the natural water course 7 the city constructed, as an artificial channel, a 4-foot drain through the grading or embankment, and extended the same 50 feet on the lots of the Orchard Place Land Company. That company continued the drain of the same size through
A city, in grading its streets, is bound to keep open a sufficient channel for a natural water course, so as not to obstruct in the least the water flowing therein. (City of Atchison v. Challiss, 9 Kas. 604.) After the city, in grading Tenney avenue, obstructed Splitlog creek, it ought to have provided a sufficient artificial channel, by drain or otherwise, to carry off the water flowing or likely to flow therein. The city had no right to obstruct the creek at Tenney avenue so as to cause the water to flow back. If it did so, it was in duty bound to furnish a new and sufficient channel for the water. I do not think it performed its duty in constructing a drain upon the private premises of the Orchard Place Land Company, if it did not retain control thereof so as to keep the drain wholly unobstructed. To me, it is no sufficient answer for the city to establish by proof that the injury to plaintiff’s premises, caused by the overflow, was occasioned by the obstructions on the Orchard Place Land Company’s property. This injury would not have happened if the city had not obstructed Splitlog creek at Tenney avenue. After it had caused such obstruction, it should have provided a sufficient drain under its own control, and kept it free and unobstructed, so as to carry off the water from the creek. It was observed in Trust Co. v. Cuppy, 26 Kas. 754, that ,
“Whether the plaintiff had any cause of action at the time of the building of the culvert or not, it is not necessary in this case to determine, for the building of the culvert- is not the gravamen of this action. The foundation of this action is the obstruction of a natural water course, causing damage to the plaintiff; and the cause of this obstruction was the filling up of the natural channel of such water course. The building of the culvert did no injury. It assisted as far as it could in*318 avoiding the injury; and if it bad been made about four times wider than it was, probably the injury would Dot have happened. The defendants had a right to construct and maintain their culvert, but it should have been a much larger culvert; and they had no right to fill up the natural channel of the water course, or to obstruct its waters as they did.” See, also, Bryant v. Carpet Co., 131 Mass. 491.