
    No. 435
    PETERSON CO. v. AKRON (City)
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1224.
    Decided May 5, 1927
    480. EVIDENCE — Where damage is sustained due to flooding because of alleged negligence of city in construction of conduit in waterway, evidence that after outlet was enlarged, there was no further overflow, is admissible and court erred in excluding same.
    First Publication of this Opinion
    Attorneys — Doolittle, Foust & Holden for Peterson Co.; N. M. Hagelbarger, and W. A. Kelly for City; all of Akron. ‘
   PER CURIAM.

The A. Peterson Co. brought an action against the City of Akron in the Summit Common Pleas for damages to its property which it claims it suffered by reason of the flooding of a certain building on June 28, 1924, said flooding alleged to have been caused by negligent construction and use of a conduit by the city. The City had determined sometime prior thereto to convert an open waterway into a conduit.

The waterway near its outlet had been enclosed, for a short distance, by a conduit of a certain size. 'East of said conduit and upstream, the waterway was open and in said open part, a conduit about three times the size of the old one was connected to • the smaller old conduit and the damage complained of occurred before the old outlet had been enlarged to conform in size to said new conduit.

Upon motion of the city, at the conclusion of plaintiffs’ evidence, the court directed the jury to return a verdict for the city. Error was prosecuted and the Court of Appeals held:

1. Plaintiff offered evidence of substantial character to sustain its claim that the city was guilty of negligence in the construction and maintenance of the conduit complained of, and that such negligence was the proximate cause of plaintiff’s damage.

2. After the damage occurred, the outlet of said conduit was enlarged according to the plan submitted at the beginning of the improvement; and the court erred in excluding evidence, that after the outlet was enlarged, the water did not overflow from the conduit, as it had done before the outlet was enlarged.

Judgment reversed and c.ause remanded.

(Washburn, PJ., Funk & PardeeJ JJ., concur.)  