Opinion
July, 1919.
Judgment and order affirmed, with costs. All concurred, except Lambert, J., who dissented in a memorandum; Hubbs, J., not sitting.
The defendant dug a ditch and collected water therein. To take care of the water so collected and other water, it built a culvert under its tracks. The jury would have been justified in finding the following facts; that the culvert was constructed in a defective and negligent manner; that defendant permitted the culvert to become clogged so that very little water could pass through it, and that the defendant had notice of such condition; that the culvert, even in its defective condition would have carried off sufficient water to have prevented the flooding of plaintiffs' buildings, if it had not been clogged with timber and debris; that the water so collected by the defendant in its ditch contributed to the water which flooded the plaintiffs' buildings. If the jury had found as above stated it would have been justified in finding the defendant negligent and awarding damages to the plaintiffs. When the defendant dug the ditch and built the culvert it assumed the legal obligation of exercising reasonable care to take care of the water collected in the ditch and to keep the culvert free and clear of obstructions. I believe that there was a clear question of fact which should have been submitted to the jury and that it was error to direct a verdict in favor of the defendant. I, therefore, vote to reverse the judgment and order.