Judge v. City of Meriden, 38 Conn. 90

Judge v. City of Meriden

38 Conn. 90 | Conn. | 1871

Foster, J.

The- injury of which the plaintiff complains was occasioned by an overflow of water from the street, upon the floor of the shop or saloon occupied by him for the sale of beer, wine and liquors..

In the first count of the declaration the plaintiff alleges that the streets and highways of the city became flooded with water from rains, and for want of suitable drains, gutters, and *96sluiceways, which the defendants were hound to provide, said water flowed into and upon the premises of the plaintiff. The second count- of the declaration sets forth that the defendants had provided, as it was their duty to do, sufficient sluices, drains, gutters, Ac. upon and along Main street in said city; that the samé were in proper condition at the time of the injury complained of, and they might and would have taken off all surface water in said street, safely, without damage, had they heen suffered to do so; but the defendants, intending to injure and prejudice the plaintiff, did withhold and prevent said water from so passing off, as aforesaid, and did divert and turn large quantities of water from said Main street into Pratt street, on which the premises of the plaintiff were situate, and so overflowed the saloon of. the plaintiff.

The gravamen of the first count is an injury to the plaintiff chargeable to the negligence and unskilfulness of the defendants in the construction of the streets and highways of the city, and the incomplete condition in which they were allowed to remain. The gravamen of the second count is an injury charged, apparently, to the wanton and malicious, at all events, to the unnecessary and injudicious, acts of the defendants in obstructing' the flow of the water through Main street, and turning it into and upon the plaintiff’s premises in Pratt street.

Prom the finding of the court below it appears that on the 10th of March, 1869, in consequence of a heavy rain, there was a large and extraordinary accumulation of water in Main street, interrupting the travel and endangering property. To relieve this accumulation of- water, the street commissioner opened a cross-walk at the intersection of Main and Pratt streets, and the water in passing down Pratt street flowed into the premises of the plaintiff. This act of the street commissioner was the cause of the plaintiff’s injury, for the case finds that without that action said water would not have entered the plaintiff’s premises., The only question therefore which it is necessary to decide is are the defendants liable for this act of the street commissioner ?

In our opinion the defendants are not liable. If the act of *97the street commissioner in opening the cross-walk between Main and Pratt streets is to be regarded as a wanton and malicious act, committed for the purpose of injuring the plaintiff, and it is so charged, the defendants are not liable—it was not their act. It would be gross injustice to hold the inhabitants of a municipality liable for a malicious trespass, because committed by a man who happened to hold an office which that municipality was by law required to fill. If, on the other hand, the street commissioner was acting on his judgment, as to what had best be done in an emergency to remove the nuisance from Main street, even- if his action was hasty, or negligent, or injudicious, his powers were not such, the relations between him and the city were not such, as to'make the defendants responsible for his act. The principle of respond-eat superior is not applicable, and the defendants are not liable.

There is error in the judgment below.

In this opinion Park, Carpenter, and Seymour, Js. concurred.

Butler, C. J.

I admit that surveyors of highways appointed by towns, and street commissioners appointed by cities, when repairing defective highways are in the performance of a public duty, and that the rule respondeat superior does not apply to those corporations in respect to such acts of such officers. I admit also, that, at the time in question, the accumulation of water in Main street was a defect in a highway, and that the act of the street commissioner in opening the cross-walk to permit the accumulated water to flow off through Pratt street into the brook, was a necessary act of reparation to prevent greater mischief to a greater number. So far forth I concur in the opinion of the court.

But there is another point in the case which I cannot permit to pass without notice. I think it is the point upon which the court below decided the case.

It appears that the defendant corporation, by order of their common council, raised the grade of Main street at the intersection of Veteran street, so that sudden and extraordinary *98collection's of water, which'were accustomed to escape over that highway at that place, and across the adjoining lands to the brook from said Veteran street, were turned down upon Main street, and, there being no adequate sluice-ways provided for its escape through the elevated way, or from Main street below it, accumulated upon Main street, and that such a diverted flow occasioned the defect in Main street, which the street commissioner at the time in question attempted to remove. There was a sluice-way in Main street, where it was raised, connecting with pipes sufficient to carry off the ordinary flow of water from Veteran street, which appears from the finding of facts to have been partially and accidentally o1> structéd at the time in question. Perhaps the court arc right in holding that the defendants are not responsible for the accidental obstruction of the sluice-ways and pipes, and that it does not clearly appear from the finding that, but for that obstruction, there would have been an accumulation in Main street at the time, and therefore the point is not properly raised, and need not be noticed in the case. But I am inclined upon reflection to think otherwise, and to hold that, if the eourt found that the defect in Main street, which the commissioner attempted to remove, was occasioned by the wrongful elevation of Main street, without a suitable provision for the passage of water so as to protect it from excessive overflows from Veteran street, the corporation was directly responsible for the defect occasioned by such overflow, and the court was right in holding them liable for the consequences which naturally and necessarily resulted from the removal.