City of Cincinnati v. Filser

The plaintiff in error seéks to reverse the judgment of the court below, assigning many reasons why this should be, done.. The ciase presents numerous interesting questions and has been the source of much discussion among the members of this court, and has received prolonged and careful consideration at our hands. The majority of the court are of opinion that there was no prejudicial error in the trial below and that the judgment of the court of common pleas should be affirmed. The negligence alleged in the petition is that the city failed to bolster up or .shore, up the soil of the hillside while they were engaged in removing dirt from the street opposite the residence of the plain [395] tiff, Charles Filser, and that the city’s negligence in' this respect caused the damage to plaintiff’s property. This statement is sufficient to explain the, nature of the cpmplaint, although it may not be coffijpíeté. . The evidence- offered at the trial "fully supports this charge" óf. n£gl'igeiiCe in the petition; It is shown by the evidence that the city, through its civil engineer and other officers and employes, had actual notice of the danger to adjoining property which attended the work upon which they were about to enter. The evidence further shows that at the time the slide occurred precautions which, in the opinion of expert witnesses produced at-the trial, were necessary owing to the known nair ture of the soil, had not been taken. There is no claim in the answer nor. is there :áüy attempt to show by evidence that it would hp.ve been impossible upon the part of the city, in. the exercise of reasonable care, to have prevented'the damage which we think the evidence shows followed as a natural consequence of the character of the work being done. Since the duty rests upon; the city* as well as upon an individual to so carry on its work, even upon its own premises, as noi; to interfere with or cause damage to its neighbors, we feel that the evidence wras sufficient to warrant the jury iri finding actionable negligence on the part of the city.- - ' " • 1 It is claimed that the- work was being done by an independent contractor. > This claim we think is fully and ably answered' in- the' brief' of counsel for defendant in error/ The work was shown to be dangerous to adjoining property owriefs unless carried on carefully. Such being the case,- the city. [396] could not absolve itself from liability by employing another to do the work.- It is further claimed that the city was the owner of the dominant-tenement and had a right to the lateral support of its street by the ground of defendant in error. This is all true, but the trouble is..that-it has no application to the facts in this case. The jury must have found in this case that the work being done by the-city had a direct connection with the slipping of the hill. The damage was not caused by the weight of the street toppling over the wall that -had been built b}^ the defendant in error.; it was caused by the dirt from-the hill slipping down upon and underneath the -street,'and the very doctrine urged here by-" the plaintiff in error made it the duty of the city to provide a lateral support along-the line of its street, -and if by failing to do so it caused the injury to -another’s property, particularly while it was-engaged in digging and removing the soil of the hilly we think its failure so to do makes it liable for-any damage resulting therefrom. It is also claimed by plaintiff in error that the damage was due to “an act of God.” In this.connection it was claimed that just before the slide occurred which caused the damage there was an extraordinary rainfall. There is nothing in the evidence to show that this rain was an unprecedented one, nor does the evidence clearly establish that it was Unusual for the season of the year in this latitude. We hold that such rains as this must reasonably be anticipated and that the city can not be excused from the consequences of its negligence [397] by not contemplating the probability of heavy rain. We find no error in the charge of the court, nor any prejudicial error in its refusal to give certain special charges requested. There being in the opinion of the majority of the court no errors apparent on the record, the judgment of the court below will be affirmed. Judgment affirmed.