City of Kansas City v. Slangstrom

The opinion of the court was delivered by

JohkstON, J.:

In improving a street of Kansas City, where it intersects Splitlog creek, the municipal authorities built an embankment across the bed of the stream, and the only provision made for - the flow of water was the construction of a small and insufficient sewer or culvert through the embankment, and which was extended by the Orchard Place Land Company through its premises. The portion of the sewer built by the company upon its property broke down, thus choking up the only opening left in the embankment for the passage of the water. The obstruction so placed across the stream backed up the water to such an extent as to overflow Slangstrom’s property, and to cause material injury. In bringing an action to recover damages, the city and the company were both joined as defendants, and it was charged that it was the combined wrongdoing of both parties which occasioned the injury for which a recovery was sought. Before the case was finally submitted to the jury by the court, the company was dismissed from the action without prejudice, and the jury found that the damages occasioned by the city, and .for which it was responsible, amounted to $240. A great many special questions were submitted to the jury, many more than were needed, but the city now complains that still others should have been submitted and answered. It is clear from the facts found by the jury that the acts of both parties contributed to cause the obstruction of the stream which resulted in the overflow and injury.

*438 2 Concurrent Tiab'uuy!‘joint ana several.

*439 8' ingMiowto oe considered. ' stream-Ha-bility of city. *437 Complaint is made that the plaintiff below was permitted to dismiss the action as against the land company and proceed against the city alone as if it was a joint action, and as if the city was liable for the acts of the land company. In the same connection, objection is made to an instruction to the effect that if the plaintiffs property was injured by over *438 flow caused by the wrongful acts of the city, or of the city and land company jointly, the jury might find for the plaintiff against the city, and assess the damages for the whole of the injury. There is no reason to complain of this instruction if the evidence tended to show that the injury was the resulto f the concurrent action of both parties. It is well settled that where two or more parties, by their concurrent wrongdoing, cause injury to a third person, they are jointly anc¡ severally liable. It is optional with the injured party to proceed against one or all of those contributing to the injury, as any one who aids and assists in committing the wrong is liable for the whole. (Westbrook v. Mize, 35 Kas. 299; Fish v. Street, 27 id. 273; Sharpe v. Williams, 41 id. 56; Hillman v. Newington, 57 Cal. 56; Bryant v. Carpet Co., 131 Mass. 491.) If the action of the city in no way contributed to the injury, the doctrine of the case relied upon, of Kansas City v. Brady, 52 Kas. 297, would apply; but the findings of the jury show that the city was primarily and largely responsible for the overflow. It is found that it built the embankment across the water course, leaving an insufficient opening for the passage of water; and there is a finding that the sewer which the city made was not in a sound and substantial condition; that it was obstructed at the time of the injury, and that the overflow was largely caused by its insufficiency in size. It is found substantially that the premises of plaintiff would have been overflowed if both sewers had remained free from obstruction. It is true the water would not have risen so high nor remained so long over the premises in question if the land company had not completed the obstruction which the city commenced. As the acts of either one would have occasioned injury, and as both contributed in obstructing the stream, a joint liability arises against them. It did not devolve upon the plaintiff to ascertain or define how far the wrongdoing of each contributed to the injury, nor was it necessary that the relative liabilities of each should be adjusted in this proceeding. There are findings which state that the city and company did not act jointly in erecting the embank *439 ment or in constructing the sewer, and it is argued that these show that there is no joint liability, and make the rulings of the court respecting such liability erroneous. All of the findings are to be considered together, and, ° 0 ' ' if possible, are to be construed so as to harmonize them and uphold the verdict. The findings fairly admit of an interpretation that, while the parties did not work together upon the same part of the obstruction nor at the same time, still they both together constructed and completed a barrier which resulted in choking up the water course and in submerging the premises of the plaintiff. The fact that they did not act at the same time and upon the same part of the obstruction is immaterial, when it appears that the wrongdoing was concurrent and combined in producing the injury. The power of the city to divert a stream passing through its limits from the natural course and to 0 confine it to a narrower channel is undoubted, but in doing so it must use reasonable care to prevent injury to others.

tain ve.cuct andjudgment. In the absence of the evidence, we cannot say the court committed error in the instructions, as those given do not appear to be inconsistent with the pleadings or with the findings of the jury. The court charged that if the injury was wholly caused by the land company, and that the city did not unite in causing the unlawful obstruction of the water course and the resulting injury, it was not liable; and the further instruction was given, that if each were guilty of wrongful acts which did not concur, the plaintiff could only recover from the city such damages as resulted from the act of the city. If there was no concurring negligence, it cannot be said — without the evidence — that the damages awarded by the jury include anything beyond what resulted directly from the act of the city; but we do not rest the decision upon that view, as it sufficiently shows that the injury was the re-suit oi the concurring wrongdoing of the city ° ° ° J and the company. There are objections to the refusal to submit certain special questions which were re *440 quested by the city, but, without the evidence or a statement of what it was, it cannot be said that they were necessary or proper, nor can it be said that the refusal to require more definite answers to two questions which were submitted was error. Upon the whole record we think a sufficient number of questions were submitted and answered, and that no material error was committed by the court during the trial.

The judgment will be affirmed.

All the Justices concurring.