#### JUANITA W. SHAW v. CITY OF GREENSBORO.

(Filed 12 November, 1919.)

1. Municipal Corporations — Cities and Towns — Waters—Surface Waters— Extraordinary Rains — Evidence—Instructions.

Where a city has been negligent in the construction of a street and maintaining a pipe it had laid in the ground under plaintiff’s dwelling for carrying off the water, causing damage to the plaintiff’s home, testimony that it was the result of a rainstorm of unusual size for that section of the country is not sufficient to sustain a requested instruction to find for *427the defendant if the damages were occasioned by an extraordinary rainfall in the community, the word “unusual,” as to the character of the storm, implying that such storms had previously occurred, and not meeting the requirement that they may have not been reasonably anticipated in the future.

2. Same.

Where there is evidence that on other occasions the plaintiff’s dwelling had been damaged by the negligence of the defendant city in not properly providing for an overflow of surface water, a requested instruction to find under the evidence for defendant, if on one occasion the damages were caused by an extraordinary rainstorm, is properly refused.

3. Municipal Corporations — Cities and Towns — Waters—Surface Waters— Drains — Damages—Plaintiff Minimize Damages.

Where damage is- sought by the plaintiff by reason of surface water flowing into his dwelling, caused by a hole In a drain pipe, which it was the duty of the defendant city to have properly fixed and maintained, the ■ plaintiff was not required to minimize his damage by fixing the pipe, at his own expense.

Appeal by defendant from Lane, J., at tbe February Term, 1919, of Guilpoed.

This is an action to recover damages alleged to have been caused by the negligence of the city of Greensboro in the improvement of certain streets, and in the diversion of surface water, and also by leaving open a certain pipe in the basement of plaintiff’s house. The jury returned a verdict of $750 for plaintiff, upon which the court rendered judgment, and the defendant ■ appealed.

The evidence tended to show that in 1915 or 1916 defendant improved North Elm Street by resurfacing it with asphalt, which raised the surface two or three inches; that the curbing on either side of said street was not raised; that the city, in the improvement of said streets, diverted and collected surface water, which was thrown upon the lot of plaintiff. Plaintiff’s house was built upon a lot that had been filled in, and under the house pipes were laid, in which was originally a ditch or branch; that these pipes carried surface water from a considerable watershed above; that on one occasion, when these pipes became stopped, hands of the city had gone into plaintiff’s basement to unstop the pipes and a hole was left in the pipes, which, plaintiff’s witnesses testified, was broken by the city hands, whereas, witnesses for the defendant testified that this pipe was broken by the plaintiff at the time she built her dwelling for the purpose of draining her basement. Plaintiff complained that through this hole water ran into the basement and did considerable damage to her property. The basement had no floor and was not waterproof.

The evidence is not stated in greater detail because there was no motion for judgment of nonsuit and no request to direct a verdict.

*428Tbe defendant asked tbe court to instruct tbe jury as follows:

“If you should find from tbe evidence in tbis case, and by its greater weight, that tbe city of Greensboro has, under tbe direction of a competent engineer,- constructed sufficient catch basins and drains to take care of tbe diverted surface water that might be reasonably anticipated on North Elm Street, if any has been diverted, and if you should further find that -on tbe occasion complained of by plaintiff there was any damage to her from surface water, and such damage resulted from surface water occasioned by an extraordinary rainfall in tbe community, then tbe defendant would not be liable to plaintiff for such injury, and it would be your duty to answer tbe first issue No.’ ”

Tbis instruction was refused except as given in the charge, and tbe defendant excepted.

“Tbe court charges you that it is a general principle of law that where one is injured by tbe act of another, it is bis duty to do what reasonable care and business prudence requires to minimize tbe loss; and if you find in tbis ease that city bad broke in tbe pipe in plaintiff’s basement, and that plaintiff could, at small expense, have repaired tbe broken pipe, it was her duty to have done so and reduced her damage so far as possible.”

Tbe instruction was refused and defendant excepted.

Tbe question involved in tbe last prayer was also raised by exceptions to tbe refusal to admit certain evidence.

J. A. Barringer and R. 0. Strudwieh for plaintiff.

Gharles A. Hines for defendant.

AlleN, J.

There is no evidence upon which tbe first prayer for instruction can be predicated, as tbe only reference to an extraordinary rainfall in tbe record is that several witnesses testified that they went to tbe house of tbe plaintiff in tbe summer of 1916 and saw a large quantity of water in tbe basement, and that tbe occasion to which they referred was at tbe time of a rainstorm of unusual size for tbis section. They also testified that they bad seen water standing about the bouse at other times when tbe rainfall was moderate, and usual in quantity.

“An ‘unusual flood of rain’ does not indicate a greater or more severe rain than has theretofore occurred, but rather such a rain as does not usually, or but rarely occurs” (Denver v. Rhodes, 9 Cola, 564), and it was tbe duty of tbe defendant to provide for such heavy rains as might reasonably be anticipated, although not of frequent occurrence. Wright v. Wilmington, 92 N. C., 159; Emry v. R. R., 102 N. C., 226.

In tbe last case cited tbe court approved tbe following instruction to tbe jury as to the duty of a railroad to provide culverts of sufficient size to carry off water: “It was tbe duty of defendant to have constructed *429its culvert so it would carry off tbe water of tbe stream under all ordinary circumstances, and tbe usual course of nature, even to tbe extent of sucb heavy rains as are ordinarily expected, unless it has tbe right of grant, actual or presumed, to make it smaller. If tbe defendant so constructed tbe culvert that it was not sufficient to carry off tbe water of the stream under ordinary circumstances (and by ordinary circumstances is meant tbe usual rainfall), even if sucb heavy rains are occasional, and by reason of insufficient culvert the plaintiff’s land was overflowed, tbe answer to tbe first issue should be ‘Tes,’ unless tbe defendant bad acquired tbe right to pond water on tbe plaintiff’s land,” and tbe same principle is applicable to tbe defendant.

Again, tbe instruction could not have been given in any 'event, because it required tbe jury to answer tbe first issue — Was tbe plaintiff’s property damaged by the negligence of tbe defendant, as alleged in tbe complaint? — “No,” if there was an extraordinary rainfall on one occasion causing damage, and to ignore evidence of damage at other times, when tbe rainfall was moderate.

The general principle, embodied in tbe second prayer for instruction, is fully recognized, that tbe injured party should do what reasonable care and business prudence requires to reduce tbe loss (Yowmans v. Hendersonville, 175 N. C., 578), but it has no application where tbe wrongdoer has tbe opportunity to remedy tbe wrong, and avoid damage, and when it would require tbe expenditure of money by tbe injured party. Roberts v. Baldwin, 155 N. C., 281; Waters v. Rear, 168 N. C., 246; Cardwell v. R. R., 171 N. C., 366.

Tbe employees of tbe defendant could have repaired tbe pipe at tbe time they made tbe bole in it, or afterwards, and it was their duty to do so, and tbe city cannot escape liability for damages caused by its negligence because of tbe failure of tbe plaintiff to expend money to do something it ought and could have done.

No error.