Wolf v. St. Louis Indep. Water Co.

Baldwin, J., delivered the opinion of the Court Terry, C. J., concurring. In this case, the complaint is for injury done mining-claims situated below defendants’ dam, and located prior to its construction. The error of the Court is, in holding the party to too strict a rule of prudence and care in the management and control of his own property. In Hoffman v. Tuolumne Water Co., decided at this term, (ante, 413,) we laid down the rule applicable to such eases. We there cited authorities from other States, which establish what we consider the correct measure of responsibility attaching to riparian owners. Ho distinction is made by those cases in the prudence.to be exercised in the use or control of a dam, or any work of the like kind, when property, liable to be injured by its breaking, was situated at the time near by or distant; indeed, this distinction could not ivell be, as in all cases, in the old States, we presume, there is always, below dams erected over a stream, property exposed to injury by a sudden breach of them. Unquestionably, as the responsibility of the owner is for negligence committed by him to the injury of another, the question of negligence and the degrees of it must necessarily depend, in a great measure, upon surrounding facts, such as the existence and exposure of property below the dam, and the like. For it is obvious, that, if there was no property to be injured, or but little, or a very remote and improbable chance of damage to other persons, no such precaution would be required as if valuable and important interests were likely to be affected by neglect or imprudence. But we see nothing in this to warrant the standard which the Court below has adopted. A discreet man may be expected to exercise unusual vigilance, diligence, and care in particular circumstances; and the law requires it of him. But the Judge below goes further, and requires the owner, on the hypothetical state of facts assumed in his charge, to exercise not extraordinary prudence only, but that care and diligence which “ a very prudent man ” would take if the risk were all his own. We do not think that this is the proper standard. Besides being uncertain, and calculated to mislead the jury, it is positively erroneous ; for, as we showed before, the law holds no man responsible for the ordinary prudent use of his own property—such use as men of common sense and prudence take of their own prop [545] erty when a failure to take it exposes them to a loss of it. This law of social duty is founded upon the obligation to j>ay such respect to the rights of others as we pay to our own. And we think that'it would be raising the standard of this obligation too high, to require every man to conform his conduct, in this regard, to the habits or acts of a particular class of men—the very prudent—instead of to the mass of them. One certain and uniform rule ought, in our judgment, to prevail in such cases, and the learned Judge below has, in the first portion of the instruction, clearly stated it. It is to require that degree of diligence and prudence ■ which men generally—or ordinarily prudent men—use in like instances when the risk is their own; and, as every case must depend in a great degree on its own circumstances, leaving the jury to determine whether, under the particular facts, that degree of prudence was exereised. Both the degree and fact of prudence must, of course, we repeat, depend upon the particular circumstances; for what, under one state of facts would be prudence, might, under a different condition of things, be gross, or even criminal, negligence. For the error indicated, the judgment mus't he reversed, and the cause remanded.