City of Louisville v. Norris

111 Ky. 903 | Ky. Ct. App. | 1901

Opinion of the cotjet by

JUDGE O’REAR

Affirming.

This is an action to recover of the 'city for the negligent construction -of certain sewers, by reason- of which appellee’s property was flooded and damaged. The questions are: (1) Is the building of sewers by a city a legislative act, for which it will not be liable, even if it be an imprudent one? (2) Does the five-year statute of limitation of this State apply from the date of the construction -or from the date the injury is received?

1. Generally, a city will not be liable for error of judgment in its legislative body in doing a legislative act. Whether a necessity for a given improvement of a highway exists is clearly one for the legislative departments of the city to decide; also the character of the improvement is within the legislative discretion, subject to the qualification that the plan adopted must be one not so palpably inefficient as to indicate want of care, or to imply a failure to exercise judgment by the city governing body. So, when a municipality determines to change the natural order ' of things, by altering the surface drainage, and collecting it into artificial channels, it can not fail to use ordinary good judgment in adopting the plan of the work, without liability to any injured thereby. If the plan adopted is palpably bad, it will not excuse the city from, resulting damage to private property to show that the execution of the plan was skillful. Gould v. City of Topeka, 32 Kan., 485 (4 Pac., 822) (49 Am. Rep., 496); McClure v. City of Red Wing, 28 Minn., 194 (9 N. W., 767); Teager v. City of Flemingsburg 109 Ky., 746 (22 Ky. Law Rep., 1442) (60 S. W., 718). On this point the trial court instructed the jury thus: “When the city undertakes to construct a sewer, it is its duty to exercise ordinary care and skill to keep it in condition to carry off the water collected thereby from such rainfalls as may be reasonably expected to occur in the neighborhood to be drained by such sewer.” This application of the law on that subject is approved.

Appellant claims that, to be liable, the city must have had notice of the defects in the plan adopted by it, and that this notice should have been in the form- of complaint by property owners after the defect had become apparent by experiment; in other words, that the city would not be liable for the first instance of damage, however heavy. The doctrine of notice invoked doubtless- is that applying to oases where an improvement was properly made, but hla'd afterwards become insufficient from accident, or sudden and unexpected change, without the knowledge of the city. But, where the initial construction is manifestly deficient for the purposes intended, that is, in the language of the instruction given, was not such as “ordinary care and skill” would suggest in order to “carry off the water collected from sudh rainfalls as may be reasonably expected to occur in that neighborhood,” — notice need not be given the city. One must take notice of his own lack of care, and can not rely upon being first warned of the dangers it threatens. Barton v. City of Syracuse, 36 N. Y., 54.

2. It being settled that the liability imposed under the foregoing was for the wrongful or negligent act of' the city, constituting a nuisance (Wood, Nuis. section 385), the complaining lot owner was not compelled to sue till the damage had been done. His action was for damages sustained at the date of the flooding of his property. Limitation should date from that event. City of Louisville v. O’Mally (21 Ky. Law Rep., 873) (53 S. W., 287).

The judgment is affirmed.