I dissent. The testimony made issues of fact which, if true, rendered the defendant liable to the plaintiff for tort. The suit is not for a continuing and permanent wrong, but is for a specific overflow of rainwater into the plaintiff's warehouse basement, which damaged the plaintiff's merchandise to the extent of $500.
The defendant's sidetrack across Lady street was built prior to August, 1913; and its building had no relevancy whatever to the plaintiff's enterprise of a warehouse, which was erected a year afterwards. *Page 337
The presence of the spur was not the cause of the overflow into the plaintiff's basement; it was only an incident. Before the construction of the sidetrack across Lady street the surface water running down hill along Lady street, from north to south, was accustomed to pass unobstructed in drains down the south side of Lady street. That water could not then turn south out of the drains and flow onto the abutting land. But when the sidetrack was built across Lady street the manner of its construction offered resistance to the water's flow, and the water turned south over the defendant's land and into the excavation which the plaintiff had made of right. The water would have gone into that excavation had there been no spur excavation; the circumstance is altogether irrelevant that the water reached first the spur excavation before it reached the warehouse excavation. Mr. Kirkland was present on the day of the overflow, and he testified thus:
"Q. State from your observation on the day of this trouble what was the direct cause of your damage? A. The direct cause, the Seaboard track ran across Lady street, formed a ditch, the water came down Lady street, it struck the Seaboard track, turned it, ran it in my place, no way else for it to go."
The engineer for the plaintiff testified thus about the same matter:
"The sidetrack where it crosses Lady street is lower than the level of the street, and, therefore, when the water would run down Lady street in times of rain, it would stop at the sidetrack, turn south and run into the block east and just above plaintiff's warehouse. The sidetrack of the defendant is lower on the south side of Lady street than on the north side of Lady street."
There is no testimony to the contrary. It is true the engineer of the defendant testified that the grade of the sidetrack across Lady street was fixed by the city engineer. But the city engineer had no authority to authorize such a crossing *Page 338 of the street as would divert water from the street onto the plaintiff's land. When the defendant crossed Lady street the law cast upon it the duty to take care of the rainfall in the street at that place. The plaintiff had nothing to do with that; and there is no evidence that the plaintiff made any promise to take care of any diversion of water at a point in the street. Whatever promise the plaintiff, through Lafaye, made to the defendant was with reference to a care for water which reached the spur excavation; there was no semblance of a promise to see that water would not reach the spur excavation from Lady street. If the construction across Lady street was negligent, and that was for the jury, and if that caused the diversion of water out of the street drains into the plaintiff's excavation, and that was for the jury, then the defendant is liable for the damage done by the water.
The order of nonsuit ought to be set aside, and the cause remanded for trial.