The City of Terre Haute v. Hudnut et al.

liminary hearing remains to be determined by the court below when the evidence shall have been fully heard.

The orders and judgment of the court are affirmed, with

costs.

Filed Oct. 19, 1887; petition for a rehearing overruled Dec. 10, 1887.

121 286

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112 542 135 263 136 288 112 542 153 343

112 542 149 672 112 542 157 528

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No. 12,893.

THE CITY OF TERRE HAUTE v. HUDNUT ET AL. MUNICIPAL CORPORATION.-Sewer.-Negligence.-A municipal corporation is liable for negligence in devising the plan of a sewer constructed by it, as well as for negligence in the manner of doing the work. SAME.-Skill Required in Plan for Sewer.—Where the authorities of a municipal corporation undertake the work of constructing a sewer, or system of sewers, it is their duty to use reasonable care to procure the services of men skilled in such matters to prepare the plans for the same, and if there is a lack of such care, by reason of which the plans are defective, they are guilty of negligence, for which the corporation must answer in case of damage resulting from such defective plans. SAME.-When not Liable for Defective Sewer.-Where, however, reasonable care is exercised by the municipal authorities in securing the employment of fair care and skill in the preparation of plans for a sewer, and ordinary care is used to see that such skill is brought into exercise, then there is no negligence, and can be no liability, although when the plan is carried into effect a defect may be developed which destroys or impairs its efficiency. SAME.-Evidence.-Reasonable Care.-Consultations With Experts.-Where a recovery is sought for injuries caused by a defective sewer, or by a sewer of inadequate size, the defect or insufficiency being caused by a defect in the plan, it is competent for the municipal corporation to show that reasonable care was exercised in the employment of a competent engineer or expert to prepare the plan, and that ordinary care was used in seeing to it that he exercised skill, and, to this end, evidence of

The City of Terre Haute . Hudnut et al.

consultation with experts, so employed, or of examination of plans by councilmen, is competent, though not in writing.

EVIDENCE.- Weight of not Determined on Question of Admissibility.—Admissible if Tending to Support Theory.-A court can not, on a question of the admissibility of evidence, determine its weight; but if there is any evidence tending to support the theory which makes the evidence competent, whether it be direct or indirect, the offered evidence must be admitted when presented in proper form. SAME.-Competent and Incompetent Must be Separated.-Where, by a single question or proposition, evidence partly competent and partly incompetent is offered, there is no error in excluding it.

SAME.-Expert Witness.-Qualifications of.-No precise knowledge is required of an expert witness; it is enough if the witness shows such an acquaintance with the subject as to qualify him to give an opinion; and in an action to recover damages for injury to a mill, a witness, who is shown to be one of the owners of the mill, engaged in operating it, and to have knowledge of its structure and the injury, is prima facie competent to give an opinion as to the length of time required to repair it.

SAME.-Negligence. - Interruption of Business. Profits as an Element of Damages. Where an established business of a permanent character, as a mill for the manufacture of grain into meal, hominy or the like, is suspended by an overflow, and machinery used therein so injured that in order to make repairs a cessation of business is necessary, the net earnings or profits of the present and past are competent to be considered by the jury in estimating the owner's damages during the period that his business is so interrupted.

From the Vigo Superior Court.

B. E. Rhoads, E. F. Williams, T. A. Foley, H. C. Pugh and H. B. Jones, for appellant.

C. F. McNutt, S. B. Davis and S. C. Davis, for appellees.

ELLIOTT, J.-The complaint of the appellees seeks to recover damages for injuries alleged to have been caused by the negligence of the municipal authorities in constructing and maintaining sewers.

One of the principal questions argued by counsel arises on the ruling excluding evidence offered by the appellant. The purpose of appellant in offering this evidence was to prove that the defect in the system of sewers was in the plan, and not in the work of executing it, and that the defect was not

The City of Terre Haute v. Hudnut et al.

the result of negligence, but of an error of judgment. It has long been the law in this State that a municipal corporation is liable for negligence in devising the plan of a sewer constructed by it, as well as for negligence in the manner of doing the work. Of course, as long as no work is done under the plan no liability can arise, nor can a liability exist where there is nothing more than a failure to adopt a plan. But where a plan is adopted and carried into execution, then there is a liability if there was negligence in devising the plan. It is the duty of the municipal corporation to exercise reasonable care in providing a plan, as well as in doing the work under it.

In the case of City of North Vernon v. Voegler, 103 Ind. 314, the cases were collected, and it was said, among other things, that "the doctrine is not only sustained by authority, but is sound in principle. Suppose that the common council of a city determine to build a sewer, and cover it with reeds, can it be possible that the corporation can escape liability on the ground that the common council erred in devising a plan? Or, to take such a case as City of Indianapolis v. Huffer, supra, suppose the common council undertake to conduct a large volume of water through a culvert capable of carrying less than one-tenth of the water conducted to it by the drains constructed by the city, can responsibility be evaded on the ground of an error of judgment? Again, to take an illustration from a somewhat different class of cases, suppose the common council to devise a plan for a bridge that will require timbers so slight as to give way beneath the tread of a child." From the rule expressed in so many of our cases we can not depart, for it is not only well sustained by authority, but is right in principle. Morrill City Neg. 86.

While our cases have always held that municipal corporations are liable for negligence in devising a plan, they have from first to last declared that there is no liability unless there is negligence. Rice v. City of Evansville, 108 Ind. 7 (58 Am. R. 22); City of North Vernon v. Voegler, supra; City of

The City of Terre Haute v. Hudnut et al.

Crawfordsville v. Bond, 96 Ind. 236; City of Evansville v. Decker, 84 Ind. 325 (43 Am. R. 86); Cummins v. City of Seymour, 79 Ind. 491 (41 Am. R. 618); Weis v. City of Madison, 75 Ind. 241 (39 Am. R. 135); City of Indianapolis v. Huffer, 30 Ind. 235; Stackhouse v. City of Lafayette, 26 Ind. 17 (89 Am. Dec. 450); City of Logansport v. Wright, 25

Ind. 512.

It is, therefore, a question of paramount importance whether the municipal authorities exercised due care in securing a plan, for if they did exercise such care, then their error is one of judgment which can not create a liability. It is, however, negligence for men unskilled in the business of preparing plans for sewers to act upon their own judgment in cases where skill is required. Bradbury v. Goodwin, 108 Ind. 286. It is their duty to use reasonable care to procure the services of men skilled in such affairs, and if they fail to exercise this care they are guilty of negligence for which the corporation must answer. Undertaking to exercise judgment without skill in a matter which requires skill is not a mere error of judgment, but it is negligence. This is a familiar principle pervading all branches of jurisprudence. A man who undertakes as a lawyer to conduct an action at law without possessing skill is negligent; so, too, one who undertakes to treat a sick or wounded man as a physician or surgeon without possessing a fair degree of professional knowledge is guilty of a breach of duty. A mechanic who undertakes to build a house is liable in damages if, through ignorance, he does his work unskilfully. Negligence, according to Judge COOLEY's definition, is "The failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances. justly demand." Cooley Torts, 630; Brown v. Congress, etc., St. R. W. Co., 49 Mich. 153.

If a municipal corporation undertakes the work of constructing a system of sewers, in a case where the assistance VOL. 112.-35

The City of Terre Haute v. Hudnut et al.

of men skilled in such matters is essential to secure sewers that shall carry off the water conducted into them, without using reasonable care to procure such assistance, there is an absence of "the precaution and vigilance which the circumstances justly demand." If, however, the municipal authorities do exercise reasonable care in securing such assistance, and do exercise reasonable care in securing the employment of fair care and skill, they are not guilty of negligence. If, after bringing into exercise reasonable care to select skilled persons, and in securing the exercise of their skill, there is still a defect in the system, it must be attributed, not to negligence, but to an error of judgment. The case is strictly analogous to that of a railroad company sought to be held liable by one of its employees. In such cases it is uniformly held, that if ordinary care is used in the selection of the coservants the company is not liable, although it may turn out that the co-servant was not capable of performing the duties entrusted to him. So, here, if the municipal corporation uses reasonable care to secure and put into exercise the services of competent engineers, it ought not to be held liable, although it does turn out that a mistake was made. It would impose a burden upon municipal corporations that no principle of right or justice warrants to hold them accountable where they have exercised reasonable care to secure a perfect and an adequate system of sewerage.

The principle which we are endeavoring to bring out is thus declared in Johnston v. District of Columbia, 1 Mackey, 427: "In the next place, a mere error of judgment in the construction of such work does not seem, on the authorities, to be a ground of action in the absence of carelessness in the selection of a plan, or the employment of proper agents to devise and execute it." A similar line of reasoning is pursued in Van Pelt v. City of Davenport, 42 Iowa, 308, where it was said: "The city can not be held liable unless for some neglect or omission of duty or negligence in its performance.” At another place in the same opinion it was said: "As the city