
    The City of Piqua v. Morris et al.
    
      Negligence — Act of God■ — Proximate cause — Superior force and concurrent negligence — Floods — Embankment breaks — Charge to jury.
    
    1. The proximate cause of a result is that which in a natural and continued sequence contributes to produce the result, without which it would not have happened. The fact that some other cause concurred with the negligence of a defendant in producing an injury, does not relieve him from liability unless it is shown such other cause would have produced the injury independently of defendant’s negligence.
    2. In the construction and maintenance of a hydraulic, or similar work, a municipality, or other owner, is required to use ■ordinary skill and foresight to prevent injury to others in times of floods to be reasonably anticipated; and if injury is caused by the negligence of such owner, he is liable in damages, provided his negligence is one of the proximate causes of the injury, although it concurred with other causes, including the act of -God.
    3. In order to -fix liability on an owner in such case, it must be shown that his negligence concurred with the act of God in causing the injury; but if the act of God, such as an extraordinary flood, was so overwhelming and destructive as to produce the injury, whether the defendant had been negligent or not, his negligence cannot be held to be the proximate cause of the injury.
    4. Where from a consideration of t’he whole charge of the court, it is seen that the jury has been given a comprehensive and intelligent instruction concerning the issues and the application of technical terms used, the fact that a particular term is also used in a special charge, or in other parts of the general charge, without such explanation, should not be held to be erroneous.
    (No. 15563
    —Decided April 2, 1918.)
    Certified by the Court of Appeals of Miami county.
    
      The defendants in error brought a suit in the common pleas of Miami county against the city of Piqua to recover damages for its negligence in flooding and injuring their farm by washing away soil and gravel and destroying a roadway, gates and fences, by the breaking of a bank of a hydraulic opposite the farm and from the rush of a large volume of water down and over it.
    The petition alleges that the city owns what is known as “Piqua Hydraulic,” which affords water for its waterworks system within the boundary of the city; that in order to maintain at all times a sufficient supply of water the hydraulic has a series of ponds of many acres in area in which to collect surplus waters, and that one of them, known as “Swift Run” pond, lies adjacent to the plaintiffs’ lands and buildings thereon, with an embankment about 30 feet high on the west thereof; that, in order to take off the surplus water that accumulates or might accumulate in said “Swift Run” pond, in times of heavy rains and high waters, there was constructed on the east bank of said pond a spillway containing 16 openings, 30 inches square, each provided with a gate or wicket; that said openings were of sufficient width and size to carry off through the same at all times all the surplus water that might accumulate in said pond and to keep and confine the water therein and prevent any overflow; that about 5 years ago the defendant rebuilt the timber part of the spillway and neglected to provide wickets for 4 of said openings; that prior to and on the 25th of March, 1913, defendant had negligently and carelessly permitted all of the remaining 12 openings, and the gates or wickets, to become and remain out of repair; that by reason thereof they would not permit more than one-half of the amount of water to pass through as if in proper condition, and that on said day all of said 12 gates were permitted to remain closed and the water was negligently caused and permitted to rise above the normal stage; that on that day a heavy rain fell which flooded the pond so that it overflowed its banks; that the water flowed to and passed over and on the plaintiffs’ premises, which were east of and adjoining the embankment, and lower, and injured them by washing away about 6 acres of dirt and gravel to a depth of 5 to 10 feet and doing the damages above stated; and that the embankment had become weakened because of negligence of the defendant.
    The plaintiffs further alleged that if the defendant had cut a trench in said embankment at the county line, instead of where it was cut, the damage would not have been caused to the plaintiffs.
    In its answer the city denied all the allegations of negligence contained in the petition, denied that the spillway contained 16 openings, but averred that it contained 12 gates or wickets.
    For a second defense, the city stated that on March 25, 1913, and prior thereto, there occurred all over the state of Ohio, including Miami county, a heavy and extraordinary rainfall in excess of and beyond anything occurring in said city and state within the memory of the oldest inhabitant of said city; that the water in the hydraulic, and in all the streams and ponds contributing to its water, rose rapidly to a height theretofore unknown and flooded all adjacent lands and streams contributing to said hydraulic and pond and assumed the proportions of an immense and violent flood, breaking away dams and bridges over streams, including defendant’s hydraulic and pond and all streams and rivers contributing to its water supply, causing a great and unprecedented destruction to life and property; that the defendant exercised every caution at its command to protect the property of the plaintiffs and the other inhabitants of Piqua; that in the exercise of due diligence and extraordinary care it was unable to . prevent the embankment of the hydraulic canal and run from breaking away; and that it was not possible to cut a trench in the embankment at the county line, nor could it have protected plaintiffs’ property by cutting the bank 500 feet north of the point at which it broke through. And it alleged that the damages, if any, were occasioned by an act of God.
    The reply denies that the damages were oc-casioned by the act of God and reiterates the allegations of the petition that the negligence of the city directly and substantially contributed thereto.
    A jury in the common pleas court returned a verdict for the defendant, and the judgment entered on this verdict was, on proceedings in error, reversed by the court of appeals for errors in the charge of the court.
    In its entry the court of appeals certified that it found that the judgment upon which it had agreed in the case was in conflict with the judgment pronounced upon the same question by the court- of appeals of Hamilton county in the case of The Standard Extract Co. v. The H. Belmer Co. It therefore certified the record of the case to this court for review and determination.
    
      Messrs. Lindsey & Berry, for plaintiffs in error.
    
      Mr. D. B. Van Pelt and Mr. A. W. DeWeese, for defendant in error.
   Johnson, J.

The verdict of the jury was general -— all of the issues made by the pleadings were resolved in favor of the defendant. This finding of course embraced the issue tendered in the second defense — that in the exercise of due diligence and extraordinary care the defendant was unable to prevent the embankment of the hydraulic and “Swift Run”' pond from breaking away; that it was not possible to cut a trench in the embankment at the county line, nor could defendant have protected plaintiffs’ property by cutting the bank 500 feet north of the point at which it broke; and that the damages to plaintiffs, if any, were occasioned by an act of God, without any fault or neglect of defendant, its officers or servants.

The downfall of water in March, 1913, has passed into the history of the state as its most extraordinary and disastrous flood. The damage and suffering it caused throughout this and adjoining states is a matter of general knowledge. It was so widespread and so devastating that the legislature less than a month after the flood passed what is generally known as the “Flood Emergency Act,” 103 Ohio Laws, 760, to authorize the duly constituted authorities of the different subdivisions of the state to borrow and expend money for the purpose of the repair, reconstruction and replacement of public property and ways injured; and this was done as a necessity for the public health, safety and convenience.

The validity of this legislation was upheld in the following June, Assur v. Cincinnati et al., 88 Ohio St., 181, in which case the wholly unusual and unprecedented character of the flood was recognized and stated to be a matter of general knowledge.

The court of appeals in reversing the judgment of the common pleas in the case at bar held that there was error in the giving of defendant’s charges Nos. 1, 2 and 6, hereinafter set forth, which were given before argument to the jury,, and in employing in charges Nos. 2 and 6 “the terms ‘intervenes,’ ‘proximate’ and ‘proximately,’ being terms of technical significance, without explanation as to their application as to the evidence and the facts;” and in ignoring in charge 6 the possibility of contributing causes. It also found error in' the general charge.

Before the giving of the charges requested by defendant the court had given a number of special charges requested by the plaintiffs, the first of which is as follows:

“The term ‘Act of God’ in its legal significance, means any irresistible disaster, the result of natural causes, such as earthquakes, violent storms, lightning and unprecedented floods. It is such a disaster arising from such causes, and which could not have been reasonably anticipated, guarded against or resisted. It must be due directly and exclusively to such a natural cause without human intervention. It must proceed from the violence of nature or the force of the elements alone, and with which the agency of man had nothing to do. If the injury is caused by the agency of man cooperating' with the violence of nature or the force of the elements, it is not the ‘Act of God.’ If there be the action of such a natural cause or force yet if the resulting injury is directly contributed to by the hand of man, it is not in law the ‘Act of God.’ If the injury is in part occasioned by the wrongful act or the negligent act of any person concurring therein and contributing thereto,. such person will be liable therefor and this applies to a municipal corporation as well as to a natural person.”

In addition to the above, the court had also given, at the request of the plaintiffs, five other special charges, in which the nature of the reservoirs involved in the case and their character as dangerous agencies in case of overflow or bursting of embankments are described. The duty of the city in such circumstances and its liability for damages occurring by reason of failure to perform the duty or for its negligent performance are also specifically and fully stated and explained.

A Plaintiffs’ charge No. 1, as above set out, is a correct and comprehensive statement of the law on the subject.

The propositions it contains have substantially been approved by the authorities. 1 Corpus Juris, 1172.

It is equally well settled that if the vis major is so unusual and overwhelming as to do the damage by its own power, without reference to and independently of any negligence by defendant, there is no liability.

In 1 Shearman & Redfield on Negligence (6 ed.), Section 39, it is said: “It is also agreed that, if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff’s damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which, concurring with his own negligence, produced the damage. But if the superior force would have produced the same damage, whether the defendant had been negligent or not, his negligence is not deemed the cause of the injury.”

In Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 57 Fed. Rep., 441, 448, the general rule as to the duty of the owners of dams and embankments to use care and skill in their construction and maintenance so as to not injure others in times of usual, ordinary and expected floods is stated, and it is there said: “But his liability extends no further, and he is not held responsible for inevitable accidents, nor for injuries occasioned by extraordinary floods, which could not be anticipated or guarded against by the exercise of ordinary and reasonable foresight, care, and skill.”

These general principles are also declared in B. & O. Rd. Co. v. Sulphur Spring School Dist., 96 Pa. St., 65, 70, and Crawford v. Rambo, 44 Ohio St., 279. They are in keeping with the clear and plain dictates of justice. They hold a property owner to the performance of every proper duty to his neighbor, but they do not offend conscience by requiring the impossible.

It will be observed that the issues presented by the pleadings in the case we have here were evidently made in view of this state of the law.

In substance the charges of negligence against the city are that it failed to provide adequate outlets for the outflow of water in times of heavy rains; that it failed to keep existing outlets open' as it should have done under the circumstances which involved probable danger; and that it unnecessarily cut the bank at or near plaintiffs’ premises and thereby permitted the water to rush over plaintiffs’ land.

The answer of the city denies all allegations of negligence and fault on its part, and in evident recognition of its duty in connection with the reservoir and banks contains the allegations above referred to, which, if true, relieved the city of any liability in the case, under the principles of law above stated.

Considerable testimony was adduced by the parties touching the issues thus made, and the contest from the first has been waged chiefly concerning the facts.

The court of appeals in the performance of its duty to consider the weight of the evidence did not find that the verdict in favor of defendant was not sustained by sufficient evidence.

The special charges given by the trial court and held to be erroneous by the court of appeals are as follows:

“1. Defendant before argument requests the court to charge the jury that if they believe from the testimony that an unprecedented rainfall and flood which could not have been reasonably anticipated by an ordinarily cautious person, was the efficient cause, the one cause that necessarily set in operation said causes contributing to plaintiffs’ injury, that plaintiff cannot recover.

“2. Where an act of God intervenes between the wrongful conduct of the defendant and the injury complained of, this will relieve the defendant from liability, if the act of God appears to be the proximate cause of the loss or injury.

“6. Where the injury was proximately caused by the act of God, the law does not concern itself with duties, the observance or breach of which had nothing to do with the damage.”

With reference to the use of the words “proximate” and “proximately,” the court in its general charge, after fully and clearly stating the issues made by the pleadings, and defining the term “Act of God” substantially as it had been defined in the charge given at the request of plaintiffs before argument, explained to the jury the nature of instances in which acts of negligence 'of the nature of those alleged to have occurred in this case would or would not be the proximate cause of injury, and charged that the burden of sustaining its defense that the “Act of God” was the direct and proximate cause of the injury rested on the defendant.

Where from a view of the whole charge it is seen that the jury has been given a comprehensive and intelligent instruction concerning the issues and the meaning of technical terms used, the .fact that a particular legal or technical word is also used in a portion of a special charge, or in the general charge, without such explanation or definition, should not be held to be erroneous.

Now, in this case we think it clear that the only possible meaning which the jury could have given to charge No. 1 was that if they found that an unprecedented rainfall and flood, which could not have been reasonably anticipated, was the sole cause of plaintiffs’ injury, plaintiffs could not recover. As to Nos. 2 and 6, when considered by the jury in the light of the general charge, we can not conceive that they could fail to understand fully the meaning of the terms “proximate” and “proximately,” which were used in those charges, or that any prejudice could have resulted to the plaintiffs therefrom. Each case must be determined by its peculiar facts. And the question as to what was the proximate cause of injury in a case such as this is one of fact for the determination of the jury. Adams v. Young, 44 Ohio St., 80.

The court of appeals also held that the court erred in the following portion of its general charge, namely, “It is not material for you to determine whether defendant could have prevented the break in the bank at the place where it occurred after its dangerous situation was discovered. There is no charge in the petition that the city could have prevented the same from breaking after its dangerous situation was discovered, and you may omit, therefore, that as a factor in determining the question of negligence.”

Immediately following this portion of the general charge is the following: “On the other hand, if the city officials did cut the bank and as a result thereof the water flowed upon plaintiffs’ lands which otherwise would not have gone there, it would be no defense that the cut was made to save lives or property, or for any other reason, because the answer does not attempt to justify the cutting of the bank, or give an excuse for doing so, simply denies that the city cut the bank.”

The court proceeded to state, that, if the jury found that the city cut the bank, the city was bound to use ordinary care to preserve the property of others in releasing the waters; and, if it was possible by the use of ordinary care to have cut the bank at either of the other places, and thus to have saved the plaintiffs’ property, it was its duty to have done so. And, further, that if the jury should find that the bank was cut by the defendant’s agents “and by the authority of the city as I have heretofore defined it to you, then you must determine whether the bank if left' alone and not cut would have gone out, and if it had gone out, whether the result would have been the same.”

From a careful consideration of this record in connection with the general knowledge concerning this extraordinary flood we think that the jury were convinced that the flood itself was the sole cause of the injury complained of and that it could not have been prevented by the doing of any of the things suggested.

An apt illustration which has been suggested is that if a river levee had been maintained at the height of 10.feet, and the custodians of the levee had been warned that flood waters might require a levee 16 feet in height, and they neglected to so increase the height of the levee, and an unprecedented flood should ensue, during which it should appear that a levee 26 feet in height would not have held the flood waters, the parties responsible for the levee would not be liable for negligence in failing to maintain a 16-foot levee when a 26-foot levee would have been unavailing.

The answer in this case in effect tendered the clear issue that the damages to the plaintiffs’ property were caused solely by the “Act of God.” We think the finding of the jury amply justified by the record.

We have not been able to see that the supposed infirmities in the charge of the trial court, which have been pointed out by the learned court of appeals and by counsel, could have been prejudicial to the rights of the defendant in error, and the judgment of the court of appeals will be reversed and that of the common pleas will be affirmed.

Judgment reversed.

Newman, Jones, Matthias and Donahue, JJ., concur.  