42 Iowa 308 | Iowa | 1875
II. The defendant asked the court to instruct the jury as follows:
Taken together it announces a correct rule of law and should have been given. The city can not be held liable unless for some neglect or omission of duty or negligence in its performance. It is not claimed that the culvert was out of repair, nor that it was in any way defective in construction, except that it was too small to admit of the passage of the surface water which accumulated in the ravine in consequence of unusually heavy showers. As the city must act through the agency of others, it was its duty to select a competent engineer. When such selection is made, the city has in that regard discharged its duty, and no direct negligence or omission is attributable to it. If a competent engineer acts in good faith in drafting the plans of a culvert, and honestly believes that he is making it large enough to accomplish the desired purpose, then no negligence of the servant is attributable to the principals.
If he is sufficiently competent and makes, a mistake after the honest exercise of his best judgment, it is such mistake as is inseparable from human action. The making of such mistake cannot be attributed to negligence, for negligence is the failure to exercise ordinary care. If, then, the city can be held responsible for the consequences of such mistakes, it is bound at its peril to secure what is impossible, absolute perfection in its servants and agents.
In The Rochester White Lead Company v. The City of Rochester, 3 Comstock, 473, the defendant was held liable for injuries resulting from an insufficient culvert built for the purpose of conducting the water of a small natural stream, which had previously been the outlet through which the surface water of a portion of the city had been carried off, and which, because of its want of capacity and the unskillfulness of its construction, failed to discharge the waters which accumulated by a freshet, so that they were set back upon the property of plaintiff. But in that case it was shown that the engineer was incompetent and the culvert was improperly constructed.
AVe have already seen that, for a mere mistake, notwithstanding the exercise of reasonable prudence and care, and the possession and exercise of competent skill on the part of its agents, the city is not liable. But this position of defendant goes much further and discharges the city absolute^ from liability because of the alleged judicial nature of the act it is called upon to perform, notwithstanding the failure to possess and employ reasonable judgment and skill.
In support of this view, counsel cite Mills v. The City of Brooklyn, 32 N. Y., 489. In that case it was held that the city was not responsible for a want of judgment in devising a system of sewerage; and that the duty was of a judicial nature, requiring deliberation and judgment. In that case it was laid down as a very clear proposition that if no sewer had been constructed at the locality referred to, an action would not lie against the corporation, and it was said that the plaintiff’s premises were in no worse condition from the construction of an insufficient sewer than if none had been made.
This case involves different principles. By projecting its street across the ravine the defendant rendered necessary the construction of a culvert to admit of the discharge of accumulating surface water. . Before the street was extended the water in this ravine passed freely and unobstructedly and without damage to plaintiff’s property. As the improvement made by the city created a necessity for a culvert, which the city could not neglect to construct without being derelict in its duty, it was incumbent upon it to exercise reasonable care, judgment and skill in its construction. Ellis v. Iowa City, 29 Iowa, 229; City of McGregor v. Boyle, 34 Iowa, 268.
YI. It is urged that the instructions are not excepted to in such manner that the errors assigned upon them can be reviewed. That case establishes the rule which applies under section 2789 of the Code, where the exceptions are not taken at the time the instructions are given, but within three days after verdict. The abstract in this case shows that the instructions complained of were excepted to at the time they
The foregoing discussion presents our views upon all the questions which will probably arise upon the re-trial. It follows that the judgment must be
Reversed.