Shaw v. City of Greensboro

AlleN, J. There is no evidence upon which tbe first prayer for instruction can be predicated, as tbe only reference to an extraordinary rainfall in tbe record is that several witnesses testified that they went to tbe house of tbe plaintiff in tbe summer of 1916 and saw a large quantity of water in tbe basement, and that tbe occasion to which they referred was at tbe time of a rainstorm of unusual size for tbis section. They also testified that they bad seen water standing about the bouse at other times when tbe rainfall was moderate, and usual in quantity. “An ‘unusual flood of rain’ does not indicate a greater or more severe rain than has theretofore occurred, but rather such a rain as does not usually, or but rarely occurs” (Denver v. Rhodes, 9 Cola, 564), and it was tbe duty of tbe defendant to provide for such heavy rains as might reasonably be anticipated, although not of frequent occurrence. Wright v. Wilmington, 92 N. C., 159; Emry v. R. R., 102 N. C., 226. In tbe last case cited tbe court approved tbe following instruction to tbe jury as to the duty of a railroad to provide culverts of sufficient size to carry off water: “It was tbe duty of defendant to have constructed *429 its culvert so it would carry off tbe water of tbe stream under all ordinary circumstances, and tbe usual course of nature, even to tbe extent of sucb heavy rains as are ordinarily expected, unless it has tbe right of grant, actual or presumed, to make it smaller. If tbe defendant so constructed tbe culvert that it was not sufficient to carry off tbe water of the stream under ordinary circumstances (and by ordinary circumstances is meant tbe usual rainfall), even if sucb heavy rains are occasional, and by reason of insufficient culvert the plaintiff’s land was overflowed, tbe answer to tbe first issue should be ‘Tes,’ unless tbe defendant bad acquired tbe right to pond water on tbe plaintiff’s land,” and tbe same principle is applicable to tbe defendant. Again, tbe instruction could not have been given in any 'event, because it required tbe jury to answer tbe first issue — Was tbe plaintiff’s property damaged by the negligence of tbe defendant, as alleged in tbe complaint? — “No,” if there was an extraordinary rainfall on one occasion causing damage, and to ignore evidence of damage at other times, when tbe rainfall was moderate. The general principle, embodied in tbe second prayer for instruction, is fully recognized, that tbe injured party should do what reasonable care and business prudence requires to reduce tbe loss (Yowmans v. Hendersonville, 175 N. C., 578), but it has no application where tbe wrongdoer has tbe opportunity to remedy tbe wrong, and avoid damage, and when it would require tbe expenditure of money by tbe injured party. Roberts v. Baldwin, 155 N. C., 281; Waters v. Rear, 168 N. C., 246; Cardwell v. R. R., 171 N. C., 366. Tbe employees of tbe defendant could have repaired tbe pipe at tbe time they made tbe bole in it, or afterwards, and it was their duty to do so, and tbe city cannot escape liability for damages caused by its negligence because of tbe failure of tbe plaintiff to expend money to do something it ought and could have done. No error.