German Theological School v. City of Dubuque

64 Iowa 736 | Iowa | 1883

Lead Opinion

Day, Ch. J.

water^sierecscopie views. X The plaintiff offered in evidence stereoscopic views of the plaintiff’s property, taken on the day following each of the injuries of which the plaintiff complains. The defendant objected to the evi¿ence as incompetent, irrelevant, immaterial and secondary. The objection was sustained, and the evidence was excluded. The stereoscopes ought to have been admitted. They were competent evidence to show the condition of the property after the alleged injuries, for the purpose of establishing the amount of damages. Locke v. The S. C. & P. R. Co., 46 Iowa, 109; Reddin v. Gates, 52 Id., 210. The fact that the plaintiff’s property was injured at the times complained of was, however, established without any conflict. The verdict for the defendant could not have been based upon the ground that no injury was sustained, but must have been based upon the ground that the injury occurred under such circumstances that the defendant was not liable for it. The rejection of the stereoscopic views, therefore, worked the plaintiff no substantial injury, and the ruling was without prejudice.

2.-: city: unpreceaented . storms. II.. Evidence was introduced tending to show that the storms which occasioned the injury in September, 1875, and July, 1876, were unprecedented and extraordinary in their violence, and m the amount oí water , . . , , which fell in a given time, lhe plaintiff introduced a witness, and asked the following questions: “Do you remember a storm prior to 1875, that washed out Hill street in Dubuque, and a portion of Julien Avenue? Have you ever noticed the effects of water washing down Dodge street in the city of Dubuque — the street running from the gas-works west? State if you have any knowledge of any similar storm occurring, so as to cause an immense flood oí water down any of the other ravines besides Plake IIollow in the vicinity of Dubuque? Do you know of any such,storms occurring, so as to occasion the flow of a mass of water similar to what came down Mineral street or Blake Hollow in the fall of 1875, and July, 1876, coming down through ravines in the city of Dubuque, prior to 1875 and 1876?”

These questions were all objected to as immaterial, incompetent and irrelevant, and the objections were sustained. The plaintiff assigns these rulings as error. The plaintiff insists that it wras competent for it to show the character of the storms which occurred prior to those which inflicted the injury, for the purpose of showing that the latter storms were not extraordinary and unprecedented. It is to be observed that the evidence proposed seeks to establish the character of the other storms, simply by their effects upon other streets in other parts of the city. It is apparent that the other streets referred to may have been very differently situated as to extent of territory drained, size of sewers, width of street, obstructions, amount of fall, etc., all of which would directly influence the effect of a sudden rainfall. In the absence of any proof that the other streets referred to were at least as . favorably situated as the street in question, it is clear that the proffered testimony was properly rejected.

III. The plaintiff complains of the giving of the following instructions:

■. as^oSsur£ace radtaaryXtrar storms. “ 16. While it is the duty of the city, in the constructing of water-ways, to take into consideration, not only ordinary and .usual quantity of water in ordinary times, hut also the liability to freshets occasionally occurring, still, if they should' so provide, and an unusual and extraordinary storm, whereby the whole immediate country around should be overflowed and flooded, and which, by the exercise of ordinary prudence, could not be provided for and guarded against, and the damage occurred by reason of such disastrous storm, the city will not be liable, the law only holding the city to the exercise of ordinary care and prudence.

“ 17. It is claimed by the defendant that the watei coming down Mineral street overflowed Main street at its conjunction with Seventeenth street on the south, and then down, at or near Iowa street, when it struck said Seventeenth street, undermining said Seventeenth street with such a volume and with such force as to raise the stone curbing and flagging, and breaking up the street, and that the damage was the result of the action of the flood thus coming onto said street, and not from any negligence on the part of the city.

“ If you And from the evidence that the damage complained of was the washing out of said vacant lot, and that' the same was not caused hy or the'result of any negligénce on the part of the city in the negligent or defective construction of the improvement upon the streets of said city, the city would not be liable.”

These instructions are correct. ■ It needs no argument to establish that the defendant cannot be held liable for damages which did not result from any negligence on the part of the defendant. The remainder of the instructions is in harmony with the rule adopted by this court in Damour v. Lyons City, 44 Iowa, 276, and recognized in the later case of Cornish v. The C., B. & Q. R'y Co., 49 Id., 378.

4. SUKFAOJS water: damage to propofomierto7 repair. IY. The plaintiff complains of the nineteenth instruction. This instruction simply announces the familiar rule of law, that it was the duty of the plaintiff to exercise J L reasonable and ordinary care to put its premises •' i r ^11 repair after the damage by the flood of 1875, and protect itself from continued and future loss. The instruction is clearly correct. It is insisted, howevei*, that there is no evidence to justify this instruction, and that it misled the jury by implying that the plaintiff was guilty of contributory negligence. These objections are simply mentioned. They are not urged with any apparent confidence, and we regard them as without merit.

Y. It is claimed that the verdict is not supported by the evidence, and that it is contrary to law. No instruction is pointed out which was violated or disregarded by the jury. The evidence was conflicting, and it fairly supported the verdict. The judgment of the court below is

Aeeirmed.

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Dissenting Opinion

Adams, «L,

dissenting. — The city having introduced evidence tending to show that the rainfalls in question were unprecedented, it was competent for the plaintiff, if it could, to rebut this evidence, by showing that the rainfalls were not unprecedented. For the purpose of this showing, the plaintiff introduced witnesses, and asked them certain preliminary questions, which are set out in the second division of the majority opinion. These questions were disallowed by the court, and the majority opinion holds that they were proj:>erly disallowed. I think that at least one of the questions was not objectionable. It is in these words: “Do you know of any such storm occurring, so as to cause the flow of a mass of water similar to what came down Mineral street, or Blake ILollow, in tbe fall of 1875, and July, 1876, coming down through ravines in tbe city of Dubuque, prior to 1875 and 1876?” It would be conceded, I suppose, that it would have been proper to. ask tbe witness if be bad knowledge of as large rainfalls in Dubuque prior to those which did the injury complained of. Now, the question asked did not, I tbink, differ materially from tbis. It is true, it inquires in regard to tbe flow of water through the ravines generally, in the city of Dubuque, and these ravines, it may be, differ somewhat. Some of them may be suclr as to collect a larger, and some a smaller amount of water in a given rainfall, than Blake Hollow. But tbeir difference, if it exists, could be shown in tbe progress of tlie examination. The question asked was not, I tbink, subject to the objection made, and the court should, I think, have allowed it to be answered.

Mr. Justice Beck concurs in tbis dissent.