3 Ind. 236 | Ind. | 1851
Case by Ross against the city of Madison. The declaration alleged that the plaintiff, Ross, was the owner of a tan-yard, and that the city of Madison constructed a culvert and embankment across a small stream of water on Second street, in said city, so unskillfully that, by means thereof, said plaintiff’s tan-yard was overflowed and destroyed. The city pleaded the general issue, and a special plea which need not be noticed. The issues were of fact. They were tried by a jury, and Ross obtained judgment. The evidence is not upon the record. The question in the case, for there is but one raised by counsel in this Court, arises upon instructions given and refused. The Court instructed the jury as follows:
“ 1. The city of Madison is liable for injuries done by her agents, as individuals are
“2. If, in this case, the city, by her council, made an
“3. It is immaterial whether the contracts were made in writing or not, or whether the improvement was made on a street, or on the Lawrenceburgh road, if within the corporate limits of the city.
“ 4. The city of Madison is as much bound by the acts of Marsh and Ford, if they assumed to act as her agents, and after the acts were done she paid for them, and ratified them, as if she had at first ordered the improvement and made written contracts according to her charter and ordinance
“5. If the jury find from the evidence that, owing to the negligent, careless, or unskillful manner in which the culvert in question was constructed, the tan-yard of the plaintiff was overflowed and he damaged, or the overflow and damage were thereby increased, the jury should find for the plaintiff.
“ 6. If the jury find that the flood of water which the plaintiff says injured his tan-yard, would have injured the tan-yard equally as much, if said culvert and improvement had not been made, the city is not liable.”
The Court refused to give this instruction, the same being relevant:
“If the jury shall find that the damage complained of was occasioned by a flood of water so much more extraordinary than usual, that ordinarily careful and thoughtful men and ordinarily skillful engineers would not contemplate that such a flood would ever come, and said culvert and improvement did prove sufficient for all purposes for about three years, the jury should find the damage to have happened by what, in law, is called the act of God, and should find for the defendant.”
“ The degree of care and foresight which it is necessary to use, in cases of this description, must always be in proportion to the nature and magnitude of the injury that will be likely to result from the occurrence which is to be anticipated and guarded against. And it should be that care and prudence which a discreet and cautious individual would or ought to use if the whole risk and loss were to be his own exclusively. Here the probable, if not the necessary, consequence of the carrying off of the city dam, by a flood, would be not only to sweep away the buildings and erections of all the owners of property upon the Croton below such dam, but also to endanger the lives of such owners and of their families. The dam should, therefore, have been constructed in such a manner as to resist such extraordinary floods as might have been reasonably expected occasionally to occur. And if the flood of 1841 was not much higher than any which had been known to occur upon this stream within the
The judgment is reversed with costs. Cause remanded, &c.
See Ross v. The City of Madison, 1 Carter’s Ind. R. 281.
Id.