112 Neb. 120 | Neb. | 1924
This is an appeal from a consolidated action brought against the city of Chadron, a paving contractor, and a subcontractor, to recover damages occasioned by the flooding, by water overflowing from gutters in the street, of the basements of stores owned and operated by the respective plaintiffs. No service was had upon the other defendants, and the action proceeded to a judgment against the city, from which it has appealed.
The evidence is substantially to the etfect that in 1920 the city entered into a contract with the Ford Paving Company to curb, gutter and pave certain streets in the city and lay storm sewers therein; that, preparatory to paving, a subcontractor of the paving company, the Hahn Construction Company, which was doing the curbing and guttering, had entered upon the work on Main street in said city. The plaintiffs charge, and the evidence tends to prove, that, through the negligence of this subcontractor, the gutters on Main street became obstructed by piles of dirt and sand at the intersection of Second street, in such a manner that the water from a heavy rainfall, which otherwise would have flowed down the gutters and passed away from the neighborhooc of plaintiffs’ stores withodt injury to their property, was obstructed and dammed back in such a manner that it overflowed the curb and ran into the basement of their respective stores, causing the damage complained of to goods therein.
Plaintiffs rely upon the proposition that it was the duty
A number of these propositions have already been settled by this court. With respect to the defense that the injury resulted from the negligence of an independent contractor and therefore, the city was not liable, it was held in City of Beatrice v. Reid, 41 Neb. 214:
“That a municipal corporation, by contracting with another to construct an improvement for it, does not and cannot thereby abdicate its control over the streets or public grounds of such corporation, nor thereby exonerate itself from liability for an injury resulting from the negligence
Is the city liable for negligence in the maintenance of, or in the obstruction of, the gutters and drains provided by it for the removal of surface waters? In City'of Beatrice v. Leary, 45 Neb. 149, the ground of negligence alleged and made the basis of the action was that the city, in grading and paving Court street, filled a ditch in the street through which surface water, flowing in a natural depression or drainage channel, found its way to the river, and failed to provide any other outlet for the water, so that the water was thrown upon and damaged plaintiffs’ property. The city denied negligence, pleaded that the grading and paving were done at the request of the abutting property owners, of which plaintiff was one, and that the damages were the result of an unprecedented rain storm. The evidence showed that the overflow was brought about by the act of the city in filling the ditch and in failing to provide sufficient outlets to the water elsewhere. This court held that, when the city filled up the ditch in the street, it was charged with the duty of constructing other sufficient ditches or outlets to carry the water to the river. The gist of the holding is that the city, having constructed or provided a method of conducting surface water through its streets by means of a ditch or gutter, when it dammed or obstructed this outlet and failed to provide another method to discharge the waters, was guilty of actionable negligence.
In McAdams v. City of McCook, 71 Neb. 789, on rehearing, 76 Neb. 1, 7, 11, the facts alleged were that certain merchandise in the basement of plaintiff’s storeroom was damaged by reason of the negligent omission of the city to maintain in proper condition a system of drainage ditches and culverts which it had constructed for the purpose of conducting surface water through the city; that the natural flow of surface water had been diverted through this system; that, through the negligence of the city, the embankments which confined the waters to the drainage ditches
“When a city makes provision by sewers or drains for carrying off the surface water, it may not discontinue or abandon the same when it leaves the lot owner in a worse condition than he would have been if the city had never constructed such drains. City of Atchison v. Challiss, 9 Kan. 603. It is also urged by the city that the injury complained of by the plaintiff was occasioned by surface water, which is a common enemy, and that for injuries arising from this source no one is liable. This contention, however, so far as it applies to cases of this character, is qualified by the principle that the city, like a private individual, must so use its own as not to injure another. City of Kearney v. Themanson, 48 Neb. 74.”
These principles were not departed from in the final opinion, which held that it was incumbent upon the defendant to establish the defense that the storm was of such a character as to constitute it an act of God, and the judgment against the city was affirmed.
These decisions have settled the questions as to the liability of a city for negligence in failing to keep or maintain its surface-water drainage system in its streets in proper and reasonable condition, and ás to whether it can relieve itself from this liability by proof that the negligence was that of an independent contractor employed by it.
There was a conflict of evidence as to the fact of excessive and unusual rainfall. There was sufficient evidence to sustain the finding of the trial court against the city on this issue.
As to the defense that the surface water entered the basement in consequence of the negligence and want of care of the plaintiffs in installing a water-pipe connecting to the city’s water-main in the street, in the course of which a ditch was opened and negligently refilled in such a manner as to be insufficient to exclude from the basement rain and surface water running in the street, the evidence was conflicting, but the finding of the trial court is not found to be erroneous.
Does the failure of the plaintiffs to give the notice required by section 4384, Comp. St. 1922, constitute a defense to this action? The city of Chadron is a city of the second class, and consequently section 4384, and not section 4161, which is cited by counsel for the city, applies. This question has already been settled in a recent case. In Muffley v. Village of St. Edward, 110 Neb. 572, it is held:
“The words, ‘arising from defective streets,’ in section 4384, Comp. St. 1922, have reference only to claims for damages to the person or property of travelers upon the street using the same in the ordinary way, and have no reference to a claim for damages to abutting property based upon negligence or tort of the city giving rise to a cause of
It has also been held that where the injury is the result of an act of direct malfeasance on the part of an agent of the city, the city is bound to take notice of it, and further notice is unnecessary. Tewksbury v. City of Lincoln, 84 Neb. 571; City of Omaha v. Jensen, 35 Neb. 68.
Finding no reversible error, the judgment of the district court is
Affirmed.
Note — See Judgments, 23 Cyc. p. 1280; Municipal Corporations, 28 Cyc. pp. 1316, 1450 (1925 Ann.).