Helphand v. Independent Telephone Co.

Barnes, J. Action for damages to a stock of goods by surfáce water alleged to have been negligently collected in a ditch dug by defendants, and thence thrown into the basement of a building occupied by the plaintiff. It appears that plaintiff was the owner of a stock of “gents” furnishing goods, a part of which were stored in the basement of a building situated in the city of Omaha and occupied by him; that in the month of August, 1907, defendants, in constructing certain telephone lines in that city, dug a ditch or trench to be used as a conduit for its [543] wires through a public alley adjacent and in close proximity to the plaintiff’s building, and left it in such a condition that the heavy rains which fell in that season of the year were collected therein, and thence escaped into the basement and damaged plaintiff’s goods. There was no dispute as to the foregoing facts. Defendants, to defeat a recovery, claimed that when they were digging the ditch in question their workmen discovered that at some prior time a sewer connection extending from the basement of plaintiff’s building across the alley had been made, either by the plaintiff or his grantor; that the earth replaced in the sewer trench had not been sufficiently tamped to render it impervious to water, and, by reason thereof, the surface water collected in the ditch, soaked through the sewer trench into the plaintiff’s basement and caused the damage of which he complains. It was therefore contended that the plaintiff was guilty of contributory negligence. It appears that the trial court, after correctly instructing the jury as to the defendants’ legal duties and liabilities, by another instruction, submitted the question of contributory negligence to the jury. The giving of that instruction is assigned as error, which plaintiff strenuously contends entitled him to a new trial. The argument of the defendants in support of the instruction is that both parties had an equal right to the use of the public alley, in which their conduit was being constructed, and therefore the plaintiff owed them the duty to so construct the sewer connection as to render it impervious to the water which they collected and allowed to flow into their ditch, and by failing to do so he was guilty of contributory negligence. Counsel has cited no authorities to support this argument, and we doubt if any can be found by which it can be sustained. On the other hand, the plaintiff asserts that the evidence shows conclusively that, when the earth was replaced in the sewer excavation and the paving replaced thereon, the alley was left in a safe, suitable and proper condition for the public use; that no surface water [544] had thereafter penetrated the basement of his building, and he therefore insists that having done all that was required of him, both for the protection of the public and his own property, he owed no additional duty to the defendants and could not be said to have been guilty of contributory negligence. This contention seems to be well founded. It appears that when the sewer connection was made neither the plaintiff nor his grantor owed any duty to the defendants, and when defendants entered upon the construction of their conduit it was their duty to so construct the ditch as not to injure the property of the plaintiff who was an abutting lot owner. In the case of Cook v. Champlain Transportation Co., 1 Denio (N. Y.) 91, it was said: “Where one, in the lawful use of his own property, exposes it to accidental injury from the lawful acts of others, he does not thereby lose his remedy for an injury caused by the culpable negligence of such other persons.” The rule is to so use one’s own as not to injure others, and not, as the defendants contend, to use your own so that another shall not injure your property. In other words, one cannot lawfully use his own property, or exercise his rights, in such a manner as to increase the risk or. danger of injury to another’s property. In Miles v. Postal Telegraph Cable Co., 55 S. Car. 403, it was said: “On the contrary, it behooves a telegraph company, in its legal use of a way or road, or oven a highway or post road, to guard such use so that no injury shall result to the property of its owner which may be located opposite such telegraph lines, through its negligence or want of due care.” Speaking of the rule of contributory negligence, it is said in 29 Cyc. 516: “This rule is subject to the exception that, as a person is entitled to use his own premises for any lawful purpose, his failure to protect it from the negligence of another will not be contributory negligence.” The text above quoted is well supported by the following authorities: Werner v. Cincinnati, 23 Ohio C. C. Rep. 475; Yik Hon v. Spring Valley Water [545] Works, 65 Cal. 619; Martin v. North Star Iron Works, 31 Minn. 407; Stone v. Hunt, 114 Mo. 66, 21 S. W. 454; and many others. We are therefore of opinion that the question of contributory negligence does not arise in this case, and the trial court erred in submitting that question to the jury by the instruction of which the plaintiff complains. The judgment of the district court is therefore reversed and the cause is remanded for further proceedings. Reversed.