Durgin v. Neal

Gibson, C. This was an action to recover damages for injury to plaintiff’s merchandise, caused by the negligence of defendants in flooding a cellar wherein the -same was stored.

At the trial, which was before the court without a jury, the defendant Neal, the owner of the premises upon which her co-defendants were erecting a building for her, and who does not appear to have either demurred [597]or answered, moved for and obtained a nonsuit. The trial then proceeded against the defendants McNally and Young, and resulted in a judgment against them for $321 damages and $53.15 costs. From that judgment McNally and Young appeal.

The first point urged by them as a reason why the judgment should not stand is, that the court erred in overruling their general demurrer to the complaint, because the second allegation thereof fails to state facts showing any negligent or unlawful acts upon their part.

The portion of the complaint referred to, shorn of its verbiage, in substance states that in January, 1888, the defendants dug and excavated the street and sidewalk of the public street in front of and adjoining the premises occupied by plaintiff, in such a manner as to allow the rain and water to accumulate and flow into the adjoining premises of plaintiff, and cover his merchandise, consisting of books and albums, with water and filth, to his damage in the sum of $384.

The gist of the action was not in merely making the excavation in front of the adjoining premises, for that they had a right to do, but in negligently allowing the rain-water to accumulate and flow into plaintiff’s cellar. Such negligence sufficiently appearing, the demurrer was properly overruled. (Hoffman v. T. C. W. Co., 10 Cal. 413.)

An attempt was made in the complaint to show that plaintiff was not guilty of contributory negligence, by alleging that the damage was caused without the consent of plaintiff; but as plaintiff was not required to show this, the allegation was immaterial. (Yik Hon v. S. V. W. W. Co., 65 Cal. 619; Robinson v. W. P. R. R. Co., 48 Cal. 410.)

The other point urged by the appellant is, that the findings are outside of the issues. The main issue tendered by the pleadings was as to whether in excavating in the street in front of and adjoining the premises of plaintiff, the defendants negligently permitted the rain[598]