the defendant company owned and operated a line of railroad, and also a number of connecting stub lines, the roadbed and ties of which were owned by a lumber company. The railway company owned the rails and fasteners, and laid the rails and maintained the tracks. It exacted a charge of $1 per car, called trackage charge, in addition to the tariff rates for cars originating on the stub lines, except those of the lumber company. In holding such charge invalid, the court, after stating that it was contended that the lumber company was not a common carrier and not within the jurisdiction of the commission, say (129 Minn. at page 124, 151 N. W. at page 975):

*

*

Again assuming, for the purposes of this case, that the coal company owns the portion of the railroad claimed by it, and that the coal company itself made up the deficiency in the cost of operating the railroad, still the railway company has no right to make the discrimination found by the commission to be made.

"This is conceded. It is not a common car It is not a question as to the rier, nor even a private carrier. It has a right of the railway company to take and roadbed and ties, but the defendant is the com- use the lands or property of the coal common carrier which exclusively operates over them. The suggestion is made that the result pany without consent and without compenreached amounts to a confiscation of the prop-sation. It is a question as to the right of a erty of the lumber company. The lumber com- corporation, having all the rights and subpany is not in this suit. It presents to the ject to all of the duties and obligations of a court no grievance. It and the plaintiffs sustain no contractual or other relations; and be- common carrier, to operate its own line for sides it is not injured. * The lumber the exclusive benefit of the coal company, company was not required to permit the use and to use the coal company's line over the of its roadbed by others. The defendant rail- coal company's property with its consent to way company was not required to operate these stub lines as a common carrier. It was not re- transport its coal to and over the railway quired to run its ears in and take out the company's line, all to the exclusion of the products of the plaintiffs. It undertook to op- general public or those who have the right erate these stub lines as a common carrier. to equal shipping privileges. Then it became entitled to reasonable transpor tation and service charges and was charged with correlative duties. * We place our decision upon the ground that the defendant was a common carrier over the stub lines just as much

as over its own main line."

The court further point out that a different holding might lead to abuses and say: "The harm to be apprehended is greater when there is a common ownership.'

In Bedford-Bowling Green Stone Co. v. Oman et al., 115 Ky. 369, 73 S. W. 1038, the

railroad company had a contract by which it operated over a switch owned by one of the parties, and the court say (115 Ky. at page 379, 73 S. W. at page 1040):

"So far as this record shows, it exercises the same control and dominion over this line that it does over any other part of its system; and we think, by the terms of the contract in question, the switch, during the continuance of the contract" in question, "at least, becomes a part of the general system of the Louisville & Nashville Railroad Company. This being so,

i

We therefore hold that, as long as the railway company operates any portion of the railroad in question, it must do so without discrimination in favor of any shipper. This is a small and unimportant railroad, whose operations are very limited; but the questions that are brought to the court for consideration are not limited. They affect every common carrier. If this company may arbitrarily select those whom it will serve, any company may do so.

The order of the commission will be modi

fied, so as to be effective over the line claimed by the coal company during such period as it is used by the railway company for the transportation of freight, and, as so modified, will be affirmed.

Order affirmed.

NICHOLS, C. J., and WANAMAKER, NEWMAN, JONES, MATTHIAS, and DONAHUE, JJ., concur.

300

CITY OF PIQUA v. MORRIS et al. (No. 15563.)

(Supreme Court of Ohio. April 2, 1918.)

(Syllabus by the Court.)

1. NEGLIGENCE 58, 61(1) CONCURRING CAUSES "PROXIMATE CAUSE."

The "proximate cause" of a result is that which in a natural and continued sequence contributes to produce the result, without which it would not have happened. The fact that some other cause concurred with the negligence of a defendant in producing an injury does not relieve him from liability, unless it is shown such other cause would have produced the injury independently of defendant's negligence.

volume of water down and over it. The petition alleges that the city owns what is known as "Piqua Hydraulic," which affords water for its waterworks system within the boundary of the city; that in order to maintain at all times a sufficient supply of water the hydraulic has a series of ponds of many acres in area in which to collect surplus waters, and that one of them, known as "Swift Run pond," lies adjacent to the plaintiffs' lands and buildings thereon, with an embankment about 30 feet high on the west thereof; that in order to take off the surplus water that accumulates or might accumulate in said Swift Run pond, in times of heavy rains and high waters, there was constructed on the east bank of said pond a spillway containing 16 openings, 30 inches square, each provided with a gate or wicket; that said openings were of sufficient width and size to carry off through the same at all In the construction and maintenance of a times all the surplus water that might achydraulic, or similar work, a municipality or other owner is required to use ordinary skill and cumulate in said pond, and to keep and conforesight to prevent injury to others in times of fine the water therein and prevent any overfloods to be reasonably anticipated; and if in-flow; that about five years ago the defendjury is caused by the negligence of such owner, he is liable in damages, provided his negligence is one of the proximate causes of the injury, although if concurred with other causes, including the act of God.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]

2. MUNICIPAL CORPORATIONS

BILITY-FLOODS-ACT OF GOD.

733(4)-LIA

3. WATERS AND WATER COURSES 171(2) FLOWAGE CONCURRING

DAMAGE FROM

CAUSES-FLoods.

In order to fix liability on an owner in such case, it must be shown that his negligence concurred with the act of God in causing the injury; but if the act of God, such as an extraordinary flood, was so overwhelming and destructive as to produce the injury, whether the defendant had been negligent or not, his negligence cannot be held to be the proximate cause of the injury.

4. APPEAL AND ERROR

295(12)-REVIEWHARMLESS ERROR INSTRUCTIONS-DEFINITION OF TECHNICAL TERMS.

Where, from a consideration of the whole charge of the court, it is seen that the jury has been given a comprehensive and intelligent instruction concerning the issues and the application of technical terms used, the fact that a particular term is also used in a special charge, or in other parts of the general charge, without such explanation, should not be held to be er

roneous.

Case Certified by Court of Appeals, Miami County.

Action by one Morris and others against the City of Piqua for damages by flooding. A judgment for defendant on the verdict of a jury was reversed by the Court of Appeals, and the case certified to the Supreme Court. Judgment reversed.

The defendants in error brought a suit in the common pleas of Miami county against the city of Piqua to recover damages for its negligence in flooding and injuring their farm by washing away soil and gravel and destroying a roadway, gates, and fences, by the breaking of a bank of an hydraulic opposite the farm, and from the rush of a large

ant rebuilt the timber part of the spillway, and neglected to provide wickets for 4 of said openings; that prior to and on the 25th of March, 1913, defendant had negligently and carelessly permitted all of the remaining 12 openings, and the gates or wickets, to become and remain out of repair; that by reason thereof they would not permit more than onehalf of the amount of water to pass through as if in proper condition, and that on said day all of said 12 gates were permitted to remain closed, and the water was negligently caused and permitted to rise above the normal stage; that on that day a heavy rain fell, which flooded the pond, so that it overflowed its banks; that the water flowed to and passed over and on the plaintiffs' premises, which were east of and adjoining the embankment, and lower, and injured them by washing away about 6 acres of dirt and gravel to a depth of 5 to 10 feet and doing the damages above stated; and that the em

bankment had become weakened because of negligence of the defendant. The plaintiffs further alleged that if the defendant had cut a trench in said embankment at the county line, instead of where it was cut, the damage would not have been caused to the plaintiffs.

In its answer the city denied all the allegations of negligence contained in the petition, denied that the spillway contained 16 openings, but averred that it contained 12 gates or wickets. For a second defense, the city stated that on March 25, 1913, and prior thereto, there occurred all over the state of Ohio, including Miami county, a heavy and extraordinary rainfall, in excess of and beyond anything occurring in said city and state within the memory of the oldest inhabitant of said city; that the water in the hydraulic, and in all the streams and ponds

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

most extraordinary and disastrous flood. The damage and suffering it caused throughout this and adjoining states is a matter of general knowledge. It was so widespread and so devastating that the Legislature, less than a month after the flood, passed what is generally known as the "Flood Emergency Act," 103 Ohio Laws, 760, to authorize the duly constituted authorities of the different subdivisions of the state to borrow and expend money for the purpose of the repair, reconstruction, and replacement of public property and ways injured; and this was done as a necessity for the public health, safety, and convenience. The validity of this legislation was upheld in the following June in Assur. v Cincinnati et al., 88 Ohio St. 181, 102 N.

contributing to its water, rose rapidly to a height theretofore unknown, and flooded all adjacent lands and streams contributing to said hydraulic and pond, and assumed the proportions of an immense and violent flood, breaking away dams and bridges over streams, including defendant's hydraulic and pond, and all streams and rivers contributing to its water supply, causing a great and unprecedented destruction to life and property; that the defendant exercised every caution at its command to protect the property of the plaintiffs and the other inhabitants of Piqua; that in the exercise of due diligence and extraordinary care it was unable to prevent the embankment of the hydraulic canal and run from breaking away; and that it was not possible to cut a trench in the embank-E. 702, in which case the wholly unusual and ment at the county line, nor could it have protected plaintiffs' property by cutting the bank 500 feet north of the point at which it broke through; and it alleged that the damages, if any, were occasioned by an act of God.

The reply denies that the damages were occasioned by the act of God, and reiterates the allegations of the petition that the negligence of the city directly and substantially contributed thereto.

unprecedented character of the flood was recognized and stated to be a matter of general knowledge.

The Court of Appeals, in reversing the judgment of the common pleas in the case at bar, held that there was error in the giv ing of defendant's charges Nos. 1, 2, and 6, hereinafter set forth, which were given before argument to the jury, and in employing in charges Nos. 2 and 6 "the terms intervenes,' 'proximate,' and 'proximately,' being A jury in the common pleas court returned terms of technical significance, without exa verdict for the defendant, and the judg-planation as to their application as to the ment entered on this verdict was, on proceedings in error, reversed by the Court of Appeals for errors in the charge of the court. In its entry the Court of Appeals certified that it found that the judgment upon which it had agreed in the case was in conflict with the judgment pronounced upon the same question by the Court of Appeals of Hamilton county in the case of Standard Extract Co. v. H. Belmer Co. It therefore certified the record of the case to this court for review and determination.

Lindsey & Berry, of Piqua, for plaintiffs in error. D. B. Van Pelt, of Dayton, and A. W. De Weese, of Piqua, for defendant in error.

JOHNSON, J. The verdict of the jury was general-all of the issues made by the pleadings were resolved in favor of the defendant. This finding of course embraced the issue tendered in the second defensethat in the exercise of due diligence and extraordinary care the defendant was unable to prevent the embankment of the hydraulic and Swift Run pond from breaking away; that it was not possible to cut a trench in the embankment at the county line, nor could defendant have protected plaintiffs' property by cutting the bank 500 feet north of the point at which it broke; and that the damages to plaintiffs, if any, were occasioned by an act of God, without any fault or neglect of defendant, its officers or servants.

The downfall of water in March, 1913, has passed into the history of the state as its

evidence and the facts," and in ignoring in charge 6 the possibility of contributing causes. It also found error in the general charge. Before the giving of the charges requested by defendant, the court had given a number of special charges requested by the plaintiffs, the first of which is as follows:

"The term 'act of God,' in its legal signifisult of natural causes, such as earthquakes, viocance, means any irresistible disaster, the relent storms, lightning, and unprecedented floods. It is such a disaster, arising from such causes, and which could not have been reasonably anticipated, guarded against or resisted. It must be due directly and exclusively to such a natural cause, without human intervention. It must proceed from the violence of nature or the force of the elements alone, and with which the agency of man had nothing to do. If the injury is caused by the agency of man, co-operating with the violence of nature or the force of the elements, it is not the 'act of God.' If there be the action of such a natural cause or force, yet if the resulting injury is directly contributed to by the hand of man, it is not in law the 'act of God.' If the injury is in part occasioned by the wrongful act or the negligent act of any person concurring therein and contributing thereto, such person will be liable therefor, and this ap plies to a municipal corporation as well as to a natural person."

In addition to the above, the court had also given, at the request of the plaintiffs, five other special charges, in which the nature of the reservoirs involved in the case and their character as dangerous agencies in case of overflow or bursting of embankments are described. The duty of the city in such circumstances, and its liability for damages occurring by reason of failure to perform the duty or for its negligent performance

Immediately following this portion of the height of the levee, and an unprecedented general charge is the following: