| Cal. | Jan 15, 1859
delivered the opinion of the Court—Terry, C. J., concurring.
This was an action for injuries to naming claims, and loss of gold-bearing earth, occasioned by the negligent building of defendants’ dam across and over a ravine, upon which the plaintiffs’ claims were located —the claims being above the dam. The injury is charged to have rusulted to the plaintiff, from the careless construction of the dam, and a reservoir, whereby the gold-bearing earth of the plaintiffs was washed away by the water and lost, and other injuries done to their mining claims and property.
The defendants demurred to the complaint, and assigned several technical causes of demurrer. The main ground taken here in argument is, that there is a misjoinder of causes of action in the complaint, in this-: that the complaint claims damages for the immediate injury, by the breaking of the dam, to the pay-dirt, etc., of the plaintiffs, and also to the plaintiffs in preventing them from working their claim. But this is no misjoinder—if the objection be warranted by the facts—even according to the rules of common law pleading, which recognized the nice, and now obsolete, distinction between the action of trespass vi et armis, and the action of trespass on the case. For either of these classes of damages, the form of remedy would be ease by the old rule; the gist of the action not being the erection or breaking of the dam, but the negligence—the indirect consequence of which negligence was the injury—just as in cases of injuries caused by the not keeping of streets in repair, and the like. Chitty on Pleadings, 1 vol. 126.
The complaint seems to be well drawn, and sufficiently states the facts, viz.: that the plaintiffs, before the committing the grievances complained of, owned and possessed the premises injured, and that the
Numerous instri^tions were given, and several were refused. The Court instructed the jury that the plaintiff could not recover unless the defendant was guilty of gross negligence. This was repeated in a variety of forms. We think that, if any fault is to be found with the charges given, it is that they were too favorable to the defendant.
An instruction (marked No. 4 of those asked .by the defendant) was refused, and' the refusal excepted to. The Court was asked to charge that, if the jury believe that the injuries could have been prevented by the exercise of reasonable care on the part of the plaintiffs, they must find for the defendant. This was refused. If such an instruction be proper in any case, it is not in this. The plaintiffs were in no default for keeping their property on their own premises, nor were they bound to remove it, nor to rebuild or alter the defendant’s dam. Pie could not be held to the knowledge of the consequences, or the probable injuries resulting from the defendant’s negligence. The defendant was bound to see to his own property, and to so govern and control it, that injury would not result to his neighbor’s. If, in consequence of gross neglect, on the part of the plaintiffs, the injury happened, a different rule might be applied ; but a mere want of reasonable care to prevent the injury, does not impair the right to recover. We apprehend, if a man carelessly fires a gun into the street, that it would scarcely be admissible for him, when sued for the injury done another by it, to say that, by reasonable care, the other might have got out of the way. The instructions given in this general form, if the substance could be supported under any given state of facts, could only be to mislead the jury in this case; for what would be reasonable care under the circumstances ? What should the plaintiffs have done ? Should they have controlled the property of defendant ? or removed his own effects ? if so, when ? or inspected the dam —or offered to repair it—or given formal notice of defects ? These
Several other instructions were asked, but the substance of them had already been given; and the body of the charges—some twelve or more—presented to the jury, fully and clearly,-the propositions of law which applied to the whole case, and every material point, and enabled the jury fairly to pass upon the entire issue.
We cannot interfere with their verdict, there being some evidence upon which it can rest.
Some other errors were assigned, but we think it unnecessary to notice them.
The judgment is affirmed.