230 S.W. 874 | Tex. App. | 1921
(after stating the facts as above). The court's charge authorized a verdict in favor of the plaintiffs upon a finding by the jury that the levee constructed by the defendant along the north boundary of his land (1) "constituted such an obstruction to the natural flow of the water coming down the plaintiffs' premises as to prevent its flowing off in a natural way and to cause the water to back up and accumulate on the plaintiffs' premises, overflow their ditch and levees, and create unnatural currents across their land," and (2) "that such levee or embankment so constructed by the defendant was the proximate cause of the overflow and damage, if any, to plaintiffs' land and crops." And the charge authorized a verdict for the defendant upon the finding by the jury that —
The defendant's levee was "not the proximate cause of the overflow and damage complained of by the plaintiffs," or "if the action of the plaintiffs in straightening, narrowing, widening, or deepening the alleged waterway, and the construction of the embankment along the same caused water to accumulate and flow in a different direction in a larger volume or more rapidly than it would have flowed but for such action on their part; or if the embankment had the effect to accumulate the water in larger or heavier volumes and to be discharged upon defendant's premises in a different way than it would naturally have gone; and the defendant, to protect his land, and in the effort to do so, from any injury that might be caused on account of such action of the plaintiffs, constructed the ditch and embankment on his land, and that in doing so he exercised such care as an ordinarily prudent person would have exercised under the same or similar circumstances — then you are instructed that the plaintiffs cannot recover in this case regardless of whether or not defendant's ditch and embankment caused plaintiffs' property to be overflowed and damaged."
The effect of this latter charge was to deny the plaintiffs, and properly so, a recovery because of their own original wrong; but the court further instructed the jury, in paragraph 5, as follows:
`"The evidence in this case shows that the plaintiffs cleaned out and changed ditches and diverted water by preventing its flow to the westward over their levees on their land. Now, if you believe from the evidence that in cleaning out and changing said ditches the natural flow or outlet for the water was narrowed or diminished in places, or enlarged in places, and that such construction of said ditches and levees and diversion of the water, or any of it, from its natural course proximately caused or contributed to the accumulation of water and the overflowing and damage, if any, to the plaintiffs' land and crops, you will find for the defendant."
The plaintiffs objected, and assign error upon the giving of the instruction in paragraph 5. The objection made to the charge is to the effect that the defendant would not legally be relieved of liability for his own wrong in the fact that the construction of the ditches and embankments by the plaintiffs contributed to the accumulation and overflow of the surface waters that damaged the plaintiffs' land. The charge, as seen, relieved the defendant entirely of any liability for damages if plaintiffs' ditches and levees either "proximately caused" or "contributed" to the destructive overflow of the freshet waters on plaintiffs' land. According to the evidence in behalf of the plaintiffs the ditch and embankment erected by the defendant so obstructed the natural flow of freshet waters as to cause them to overflow and injure plaintiffs' land. The evidence in behalf of the defendant is to the effect that the ditches and embankments constructed by the plaintiffs completely obstructed and diverted the natural flow of the surface waters, and that during a freshet such obstructions collected the water, washing away part of the levees or embankments and overflowing and injuring plaintiffs' land and as well the defendant's land. In these issues of fact, then, it follows that if the defendant's erection of the ditch and embankment on his land obstructed the natural flow of the surface waters and was the proximate cause of the injury to plaintiffs' land, then he thereby became legally liable to the plaintiffs for all damages proximately resulting therefrom. And taking the evidence in behalf of the defendant, the plaintiffs' land would not have been damaged at all but for the presence of their ditches and embankments, and such obstructions to the natural flow of the freshet waters was a proximate and the sole producing cause of the destructive overflow of the waters. There can be no doubt that if the ditches and embankments as constructed by the plaintiffs "proximately caused," as charged by the court, the freshet waters to collect and overflow and damage their own land the defendant could not be held liable therefor. But the charge went *876
further, and relieved the defendant of any responsibility for any destructive overflow of water from his ditch and embankment as erected if the ditches and embankments as constructed by the plaintiffs "contributed" to cause the freshet waters to collect and overflow and damage plaintiffs' land. And the effect of this part of the charge is to deny the plaintiffs a recovery notwithstanding their ditches and levees were not the proximate cause or sole producing cause of the destructive overflow of the waters. There are authorities holding that a landowner whose property is flooded because of an obstruction of a natural water course must exercise reasonable care and diligence to minimize the damages, and if any part of his damages is the result of his own failure to use such care, to that extent at least he is not entitled to recover. Railway Co. v. Becht, 21 S.W. 971; Railway Co. v. Arey,
"If the concurrent or successive negligence of two persons, combined together, results in an injury to a third person, he may recover damages of either or both, and neither can interpose the defense that the prior or concurring negligence of the other contributed to the injury."
And Id. § 76:
"This rule obtains although it is impossible to determine in what proportion each of the wrongdoers contribute to the injury." 27 R.C.L. sec. 47, p. 116; Coleman v. Bennett,
In the facts of this case it is of no avail to defendant, as to entire exoneration, that the construction of plaintiffs' levees contributed to the overflow. The parties acted independently of each other, and not together, in constructing the several obstructions separately in controversy. The fact of defendant's liability is to be determined alone by his own wrongful act, if one, as a proximate cause of the plaintiffs' damage. The court erred, we think, in the portion of the charge here considered. Randolf v. Town of Bloomfield,
