162 Mo. App. 418 | Mo. Ct. App. | 1912
Plaintiff owned property in the limits of the defendant city, fronting on lakeview avenue. His residence, a bam and some chicken -ho uses/ were on the property. There was but slight slope to the ground. It was claimed that an amount of water was drained from other streets into Lakeview avenue beyond the capacity of the drains and culverts in the latter to carry off, and in consequence water from rains had been forced over plaintiff’s premises, but without substantial damage, until the acts of a contractor in constructing a waterworks plant for the city intervened. This contractor had taken the contract for
The trial court gave the instructions asked by plaintiff except the addition of some words in one of them on the measure of damages, and these we think were propeidy inserted. The court, however, at defendant’s instance, instructed the jury that the city was not liable for any part of the overflow caused by the acts of the contractor in constructing the waterworks plant; and that action of the court is the question for decision. It is not pretended that the contract with an independent contractor for the construction of the waterworks contemplated an interference with plaintiff’s property; nor that the plans for the work were not reasonable, and not such as to make necessary, with the exercise of ordinary care, any damage to plaintiff’s property by overflow or otherwise. Neither is it pretended that the city was party to the breaking of the culvert or leaving the ridges of dirt by the contractor on the evening preceding the night’s rain, which acts caused the excessive overflow onto plaintiff’s premises. In such circumstances the city is not bound to anticipate negligence by the contractor and there is no liability on the city. [McGrath v. St. Louis, 215 Mo. 191; Blumb v. Kansas City, 84 Mo. 112; Uppington v. New York, 165 N. Y. 222.]
The judgment should be affirmed.