Vicksburg Water Supply Co. v. Gorman

70 Miss. 360 | Miss. | 1892

Campbell, C. J ,

delivered the opinion of the court.

The first instruction for the plaintiff is erroneous, in omitting the qualification that the prosecution of the work was in a proper manner as well as with proper diligence. Even if it was being prosecuted diligently, if it was not done properly, the plaintiff cannot complain of being stopped. Another objection to this instruction is that it seems to point to the several occasions when water from the pump-house flooded the work-place of the plaintiff, and, accumulating the several hinderances he suffered from these combined, directs the jury to make the plaintiff whole “for the loss thereby occasioned the plaintiff.” There should not be such blending, for the loss from the overflow of November ■5 was a thing by itself, having no sort of connection with what subsequently occurred. It stood alone, and, if the defendant was liable for that, it is merely an item of the plaintiff’s claim, and should not be made to form part of a structure on which to found a claim for what occurred after-wards. The court instructed the jury that, for the flowing of water on the seventeenth of November, the defendant was not liable, and yet the first instruction for the plaintiff' is broad enough, and was probably understood to embrace the occurrence of November 17 as one of the hinderances to. plaintiff, for it was after November 17, and when the plaintiff complained to the superintendent of the defendant of this hinderance, that he was told he could have all the time needed. The several different occurrences should be viewed separately, for they are quite distinct. That of November 5 was not only trivial and insignificant, but has no connection with any other. For that of November 17, the defendant was held not liable.

The plaintiff continued his operations until, baffled by the difficulties encountered, he sought and obtained the opinion of the superintendent of the defendant, who advised him to quit the subterranean work, and dig an open trench. This was December 5, and after this the plaintiff abandoned his former work, and began anew on a different plan. Certainly, for all the work done prior to this, the plaintiff has no claim on the defendant. That was a loss to him which cannot be visited on the defendant. The plaintiff’s claim, besides the item of November 5, must begin on or after December 5, with the open ditch or canal, and be confined to what pertains to that. If wrongfully prevented by the defendant from executing his contract by the new plan, he should recover the value of what was actually done in execution of the contract, and any specific damage which he shows be sustained by the wrongful acts of the defendant. Therefore, the second instruction for the plaintiff' is not applicable, and should not have been given.

The defendant’s theory of the case was fairly submitted to the jury by the instructions given for it, and no error is perceived in the action of the court refusing a number of instructions asked by the defendant, or in the modification of those given.

Several of the instructions refused assert the right of the defendant to stop the work on the canal without liability, if thereby the safety of its buildings was threatened. That depends on whether the work was being properly prosecuted* If it was, it was not the right of the defendant to stop the work at the cost of the plaintiff. If it contracted for the work as being done, and, because of a rise in the river or other occurrence, it became more desirable to stop the work than to permit its completion, it could do so only subject to liability for any wrong thereby done to the plaintiff

The fourteenth instruction for defendant was properly refused, because, while the alleged injury by overflowing the canal from the pump-house of the defendant is not a distinct cause of action and ground of recovery of damages for it in this action, it was a matter for consideration in estimating what, if any thing, the plaintiff may recover for the partial completion, of the work contracted for. If the work done was recoverable for, and it was made more costly to the plaintiff by the -wrongful act of the defendant, due allowance should be made for that in determining the amount of recovery for partial execution of the contract.

Reversed, and remanded for a new trial.