Gilmer v. City Council of Montgomery

CHILTON, O.J. -1. The bill of exceptions states, that upon the trial in the court below, the defendant proposed to ask a witness on the slanci "if there were not other ravines in the city which had increased in size for• the last twenty years in as great a proportion as this ravine had increased ;" that the court overruled the plaintiffs' objection to the ques [669] tion, and allowed the witness to state that there were. The counsel for the appellee here insists, that the objection was to the question merely, and goes to its form, and not to the answer ; but we think, if the inquiry was illegal and irrelevant to the issue in the cause, and was followed by an answer disclosing facts in response to it prejudicial to the plaintiffs, the question may as well be raised by an objection to the inquiry as to the answer. 2. As to the legality of the inquiry, we concur with the counsel for the appellants. We are unable to perceive what legitimate conclusion can be drawn from the washing of other ravines in the city wholly disconnected from this. If such proof were allowed, a number of collateral issues or questions would arise; for, as to each ravine which has been washed similar to this one, the plaintiffs would be allowed to show that there had been neglect or omission on tho part of the city authorities to keep it in repair. Besides, there may have been various natural causes, operating with greater or less force, and calculated to produce different results: the character of the soil in different localities, the quantity of water, the swiftness of its flow in the different ravines, would, in a great measure, control the deepening or widening of them from washing. These are all lost sight of in the inquiry, which assumes that, because other ravines have increased in tho same proportion with this, therefore the increase of this was not owing to tho acts or omissions of the city council. 3. We do not regard the proof made by the brick-mason — ■ namely, that lie told one of the plaintiffs, if he built said wall in the ravine, it would fall by reason of the flood which washed by it — as altogether irrelevant. True, it has no very obvious connection with the issue, but, considered in connection with the other facts in the cause, it might tend to show a want of due caution, and a reckless temerity in locating the wall. 4. It is needless for us to discuss the propriety of the charges. It is very obvious, that the proof set out in the bill of exceptions fails to show either a tortious omission or breach of duty on the part of the defendant in respect of the injury complained of. The bill of exceptions says, “ Upon this proof,” the court gave the charges. Now, from anything which appears in the proof, the city council was under no obligation [670] to fill up or repair this ditch or ravine. It may have been required as an outlet for the water, and it may have been improper, if not impracticable, to have filled it up, or to have protected the wall erected by the plaintiffs. As to these matters, the bill of exceptions is silent. The ordinances passed by the city council are referred to ; but wo cannot judicially notice these. We can only look to the charter and the proof disclosed by the record ; and, regarding these, we think the court might properly have charged the jury, that if they believed the proof, they should find for the defendant. As the case must be remanded for the admission of the irrelevant proof first alluded to, we deem it unnecessary to notice the other points raised in the argument, and which will not probably again arise. Let the judgment be reversed, and the cause remanded.