
    DAMAGES TO PROPERTY FROM SURFACE WATER..
    [Circuit Court of Hamilton County.]
    City of Cincinnati v. Belle M. Johnson.
    Decided, December 2, 1905.
    
      Drains — Insufficiency of — Obstruction of — Variance between Pleading and Windings of Jury — Failure of Foreman to Sign Special Findings — Words and Phrases.
    
    1. The admission in the pleadings as to the sufficiency of a drain, the obstruction of which has caused damage to property, must prevail over a finding to the contrary by the jury.
    2. The construction of a drain by a municipality in such a manner as to obstruct the flow of water through it, is negligence on account of which a property owner can recover for damages sustained.
    2. The failure of the foreman of a jury to sign a special finding is not such an irregularity as to effect any substantial right of parties ■ to the cause.
    
      i. The use of the word “opinion” by a jury in a special finding is equivalent to a deliberate conclusion and' judgment by the jury upon the evidence of the case.
    G-iffen, J.; Jelke, J., and Swing, J., concur.
   The only allegecl error is the overruling of the motion for judgment notwithstanding the verdict in favor of the plaintiff.

This motion is based upon -two interrogatories and the answers thereto returned by the jury with a general verdict, viz:

“Interrogatory No. 1: Was the proximate cause of the injury to plaintiff’s property the failure of the defendant city to provide drains of sufficient capacity to carry off all the surface water coming to such drains ?
“A. The city did not construct culvert or drains large enough.
“(Signed) William Trimble, Foreman.
“Interrogatory No. 2. Did the damages to plaintiff’s property result solely by reason -of the failure of the city to provide drains of sufficient capacity to carry off all surface water?
“A. In our opinion it did.
“(Signed) William Trimble, Foreman.”

The allegations of negligence contained in the 'amended petition, so far as they relate to the insufficiency of the drains; are in substance as follows: The said city constructed a culvert from the east to the west side of Brown street at a point about fifty to seventyi-five feet south of the premises of plaintiff, which was capable of carrying off the water which would naturally flow to it were it kept unobstructed; that thereafter an extension to the west end of said culvert was constructed by means, of a sewer pipe twenty-one (21) inches in diameter, which was wholly and palpably inadequate to carry off the water from the culvert.

It appears from these allegations that there was in reality only one drain, denominated a culvert, and its subsequent extension by adding a sewer pipe, although the jury have treated it as two or more distinct drains.

,It is also found in answer to the first interrogatory that the culvert was not large enough, whereas the pleadings admit. that it was sufficient for all purposes and continued to be so until the extension was made. The admission of the fact in the pleadings must prevail over the findings by the jury to the contrary. Oliver v. Moore and Wife, 23 O.S., 473.

Counsel, however, make no claim under Interrogatory No. 1, but rely solely upon No. 2, claiming that it comes within the principle announced in the case .of Springfield v. Spence, 39 O. S., that—

“A municipal corporation is. not liable for simply failing to provide drainage for surface water.”

While the damage 'was caused, as the jury have found, by the failure to provide a drain or drains of sufficient capacity, the negligence consisted in the manner in which they were constructed by joining a sewer pipe only twenty-one inches in diameter onto the culvert five (5) feet in diameter, and undertaking to carry off all the water that might accumulate in the culvert through the pipe with -a diameter about one-third that .of the culvert. This was not only a failure to provide drains of sufficient capacity, but was a deliberate obstruction to the flow of water in the culvert, and amounted to negligence in no ordinary degree, for which the plaintiff was entitled to recover.

J. V.-Qompbell, for the city.

Johnson <& Levy, contra.

It is claimed by the defendant in error that the special finding should not be considered for the reason that it was not signed by the foreman of the jury until after the jury was discharged. While it is an irregularity to receive the special finding not signed by the foreman or signed after the jury has been discharged, yet it is not such as'to affect any substantia] right of the party complaining. Hardy v. State, 19 O. S., 579.

• It is also claimed that the answer is not distinct and certain because of the use of the word ‘1 opinion, ’ ’ but this is equivalent to saying that it is the deliberate conclusion and judgment of the jury, upon the evidence in the case.

Judgment will be affirmed.  