Gault v. Humes

Bowie, O. J., delivered the opinion of this Court: The cause oi action as alleged in the nar. in this case, is, that the plaintiff was seized of a lot of ground and premises on the north side of Lexington street, in the City of Baltimore, immediately adjoining and bounding on a lot of ground belonging to and owned by the defendant, and while the plaintiff’ was so seized and possessed, the defendant improperly, carelessly and wrongfully prevented and stopped for a long time, the flowing and draining of the water from the back yard of the said premises, whereby said water was held and retained in large pools in said yard and against the western wall of tbe back building of tbe plaintiff, by wbicli tbe plaintiff's wall was undermined and thrown down. To which the defendant pleaded, 1st, 6 ‘Not guilty2d, “That the wall at the institution of the suit ivas and still is the property of the defendant;” on which issues were joined. After evidence of property in the plaintiff and defendant, of the several adjoining lots, witnesses were examined by the plaintiff and defendant, to show on the part of the former, that the injury resulted from obstructing the flow of water from the yard of the defendant, done in the course of building and repairs on his own premises; and on the other hand, on the part of the latter, that the injury was occasioned by an extraordinary fall of rain, which flooded the city, and that no ordinary rain would have produced such injury, but with the use of proper precautions on the part of the plaintiff, the injury sustained by him, might have been avoided under the circumstances then existing, and that the defendant was not in default. The defendant presented a series of prayers, intended to present the propositions following, viz: 1st. That if the injury sustained was caused by the extraordinary rain, without the absence of reasonable care on the part of the defendant, the plaintiff was not entitled to recover. 2d. If the injury caused as aforesaid, might, by theexer [304] cise of reasonable diligence or care on the part of the plaintiff, have been prevented, the plaintiff was not entitled to recover. (Decided Dec. 7th, 1863.) It is well established law, that where an accident happens entirely from a superior agency, and without default on the part of the defendant, or blame imputable to him, an action for injury resulting from such accident is not maintainable, and the above defence may be given in evidence under the general issue. Broom’s Leg. Maxs., 171. Wakeman vs. Robinson, 1 Bing., 213, 215. Hall vs. Fearnley, 3 Q. B., 919. Weaver vs. Ward, Hobart, 134. It would be unreasonable that those things which are inevitable by the act of Grod, which no industry can avoid or policy prevent, should be construed to the prejudice of any person in whom there was no laches. 2 Bl. Com. 122. The obligations and duties of vicinage, urban or rural, already so numerous and delicate, would be onerously multiplied, if liability for inevitable consequences, was super-added to those now imposed by law on the owners of adjacent lands, houses and lots. However correct some of the general principles which the prayers were designed to present, they were so obscurely and imperfectly expressed as to be calculated to mislead the jury, and to justify their rejection. A majority of this Court are of opinion that the instruction granted by the Court below, as a substitute for the prayers offered by the appellant, sufficiently covers every aspect of the case, and correctly announces the law which fixes tlie liability of owners of property in such cases. Judgment affirmed.