Comegys, C. J.,
(charging jury.) This action was brought by the plaintiffs to recover damages for injuries to their merchandise, they being merchants at the south-west corner of Delaware avenue and Jackson street, by the flooding of their cellar, on the 31st of December, 1887, with water which fell in a rain-storm prevailing at that time. The way in which the water got into the celler was, as testified by the witnesses, by and through a channel or trench cut through the sidewalk from the house No. 1006 on said avenue to a private drain or sewer, built under the southern side thereof, and a few feet from the curb on that side. The depth of the trench was about eight feet, and the object in opening it was to lay pipes-for waste and drinking water, for the use of said building. The [524]*524•drain pipe laid in it was five inches .in diajneter, and the water-pipe about of half an inch dimension. The latter, to be connected with the water-main, was further in the street than the former, which' was intended to be connected with the private sewer aforesaid. The work of excavation was begun on the day aforesaid, and the drainpipe was laid from the cellar of the house to a point in the avenue near the sewer; but the work was stopped there, for a reason to be hereafter stated. According to the testimony offered by the defendant upon this point, the street end of the drain-pipe was stopped when the work ceased with bricks and cement, and the trench was filled up in the street so that vehicles could pass over it, and in the sidewalk so to make it safe for foot passengers. Whether, in view of what took place that night, this testimony is tobe entirely relied upon? it is for the jury to decide. As stated before, a rain-storm occurred that night, which was, by all the testimony, a very heavy one, and it fell upon snow already over the ground, by the melting of which the volume of water was necessarily increased. The end of the drainpipe, which was under the cellar of the house, about two feet below the surface, was not stopped at all. The next morning after the rain, which, however, fell more or less most of that day, not only was the cellar of the house No. 1006 full of water, but also the ■celler of the house next adjoining towards Jackson street, the house adjoining it, and also the house at the corner, occupied by the plaintiffs. At this point in the city—that is, from Jackson street out westwardly—there is a grade in the avenue from the west, eastward to Jackson street, of a half inch to the foot, as testified by an engineer witness. The statements of the witnesses on both sides •differ as to the state or condition of the trench on the morning of the 1st of January, 1888, and the jury must decide which of them are most entitled to credit in their statements. But, however the exact fact may be with respect to the trench, one thing would seem to be true, and that is that, as no proof has been given by the defendant from which it would appear that the water entered the cellars by their windows or in any other way, it must have got into [525]*525them by way of the trench aforesaid, or drain-pipe, or both,—that is, first into the cellar of No. 1006, and thence into the others; it having been shown by the testimony of the plaintiff’s witnesses,, and not opposed by any proof on the part of the defendant, that-there were holes under the foundations of the party-walls of the-houses connected with it, down to and including that occupied by the plaintiffs,which showed flowage of water through them from one cellar to another throughout the tier. These facts, which T have endeavored to state accurately, and the refusal of the defendant to recognize its liability to the plaintiffs for the damage which, by the testimony of the senior partner, accrued to them by the-flooding of their cellar with the water coming into it from the source aforesaid, have occasioned this suit, now on trial before you. If the water got into the cellar of No. 1006, as claimed by the defendants, and as seems most probable,—though it is for you to decide as to that question,—then it must have been because of insufficient stopping of the drain-pipe at the outer end, or the negligent filling up of. the trench across the payment and into the street, or both. There would then be a negligent or insufficient performance of that work, necessary to be done properly, for which liability to the plaintiffs would exist somewhere. The defendant’s counsel insist that such liability does ntit rest upon it, but it is to be enforced against another party, to-wit, the plumber who laid and stopped the pipe, and filled up the trench, both of which works they insist were well and sufficiently done. It must be obvious, however, from the disaster itself, there being, so far as we remember, no proof from which other means' of causing it can be inferred, "that it could not have been properly done, else the calamity could not have occurred. Who, then, or, rather, what party, is liable to the plaintiffs,—the defendant or the plumber ? This is an important question; and, it being one of law, it is our duty to instruct you what, in such cases, the law is.
The defendant here is a municipal body or public corporation, to which the legislature has, from time to time, given large powers, [526]*526to be exercised for the welfare of its people; and, as a correlative provision for the like welfare, has charged it with very responsible services, one of the most important of which is the maintenance of the public streets, highways, and sidewalks in it in safe and proper condition for public use. And in order to enable it to execute the trusts of its creation in a complete manner, for the welfare of all, there has been conferred upon it the sovereign power of taxation, by which, for legitimate public purposes, exactions to any proper extent may be made upon its citizens and their property to supply the city treasury with all necessary money for its exigencies. At the same time there went with all this fullness of power, and means to support it, a duty of the highest character to perform all its trusts with diligence, without negligence, and in entire fidelity to its inhabitants. Without such an obligation resulting from the relation it was to bear to the people within its boundaries, no public charter ever would have been granted to it by the legislature. As the corporation itself, being an artificial body only, cannot render this service of itself, it may employ agents for such purpose; and, in fact, constantly does so. Under the authority of its charter, and the ordinances passed in pursuance of legislative power, it oftentimes authorizes by license parties not in its employ to do certain things; as, for example, in the case before us, to open the public streets and sidewalks with trenches, to connect house-drains, water or gas pipes, with the public mains in the street, taking from them, or having the power to take, indemnity to protect the city from suits of liabilities of any kind growing out of the grant of such privilege, which, like all privileges, may be abused in some way to the detriment of an individual. This case is an example of such a privilege ; and if you give full credit to the plaintiffs’ testimony, of detriment to them, resulting therefrom by carelessness in using it. The defendant’s counsel claim that no liability on account of it devolves upon the defendant, and plant themselves upon the ground that the person to whom the privilege was granted was neither its servant nor agent in the work he undertook, but was acting as an [527]*527independent contractor entirely, to whom the plaintiffs must look for their redress;
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Comegys, C. J.,
(charging jury.) This action was brought by the plaintiffs to recover damages for injuries to their merchandise, they being merchants at the south-west corner of Delaware avenue and Jackson street, by the flooding of their cellar, on the 31st of December, 1887, with water which fell in a rain-storm prevailing at that time. The way in which the water got into the celler was, as testified by the witnesses, by and through a channel or trench cut through the sidewalk from the house No. 1006 on said avenue to a private drain or sewer, built under the southern side thereof, and a few feet from the curb on that side. The depth of the trench was about eight feet, and the object in opening it was to lay pipes-for waste and drinking water, for the use of said building. The [524]*524•drain pipe laid in it was five inches .in diajneter, and the water-pipe about of half an inch dimension. The latter, to be connected with the water-main, was further in the street than the former, which' was intended to be connected with the private sewer aforesaid. The work of excavation was begun on the day aforesaid, and the drainpipe was laid from the cellar of the house to a point in the avenue near the sewer; but the work was stopped there, for a reason to be hereafter stated. According to the testimony offered by the defendant upon this point, the street end of the drain-pipe was stopped when the work ceased with bricks and cement, and the trench was filled up in the street so that vehicles could pass over it, and in the sidewalk so to make it safe for foot passengers. Whether, in view of what took place that night, this testimony is tobe entirely relied upon? it is for the jury to decide. As stated before, a rain-storm occurred that night, which was, by all the testimony, a very heavy one, and it fell upon snow already over the ground, by the melting of which the volume of water was necessarily increased. The end of the drainpipe, which was under the cellar of the house, about two feet below the surface, was not stopped at all. The next morning after the rain, which, however, fell more or less most of that day, not only was the cellar of the house No. 1006 full of water, but also the ■celler of the house next adjoining towards Jackson street, the house adjoining it, and also the house at the corner, occupied by the plaintiffs. At this point in the city—that is, from Jackson street out westwardly—there is a grade in the avenue from the west, eastward to Jackson street, of a half inch to the foot, as testified by an engineer witness. The statements of the witnesses on both sides •differ as to the state or condition of the trench on the morning of the 1st of January, 1888, and the jury must decide which of them are most entitled to credit in their statements. But, however the exact fact may be with respect to the trench, one thing would seem to be true, and that is that, as no proof has been given by the defendant from which it would appear that the water entered the cellars by their windows or in any other way, it must have got into [525]*525them by way of the trench aforesaid, or drain-pipe, or both,—that is, first into the cellar of No. 1006, and thence into the others; it having been shown by the testimony of the plaintiff’s witnesses,, and not opposed by any proof on the part of the defendant, that-there were holes under the foundations of the party-walls of the-houses connected with it, down to and including that occupied by the plaintiffs,which showed flowage of water through them from one cellar to another throughout the tier. These facts, which T have endeavored to state accurately, and the refusal of the defendant to recognize its liability to the plaintiffs for the damage which, by the testimony of the senior partner, accrued to them by the-flooding of their cellar with the water coming into it from the source aforesaid, have occasioned this suit, now on trial before you. If the water got into the cellar of No. 1006, as claimed by the defendants, and as seems most probable,—though it is for you to decide as to that question,—then it must have been because of insufficient stopping of the drain-pipe at the outer end, or the negligent filling up of. the trench across the payment and into the street, or both. There would then be a negligent or insufficient performance of that work, necessary to be done properly, for which liability to the plaintiffs would exist somewhere. The defendant’s counsel insist that such liability does ntit rest upon it, but it is to be enforced against another party, to-wit, the plumber who laid and stopped the pipe, and filled up the trench, both of which works they insist were well and sufficiently done. It must be obvious, however, from the disaster itself, there being, so far as we remember, no proof from which other means' of causing it can be inferred, "that it could not have been properly done, else the calamity could not have occurred. Who, then, or, rather, what party, is liable to the plaintiffs,—the defendant or the plumber ? This is an important question; and, it being one of law, it is our duty to instruct you what, in such cases, the law is.
The defendant here is a municipal body or public corporation, to which the legislature has, from time to time, given large powers, [526]*526to be exercised for the welfare of its people; and, as a correlative provision for the like welfare, has charged it with very responsible services, one of the most important of which is the maintenance of the public streets, highways, and sidewalks in it in safe and proper condition for public use. And in order to enable it to execute the trusts of its creation in a complete manner, for the welfare of all, there has been conferred upon it the sovereign power of taxation, by which, for legitimate public purposes, exactions to any proper extent may be made upon its citizens and their property to supply the city treasury with all necessary money for its exigencies. At the same time there went with all this fullness of power, and means to support it, a duty of the highest character to perform all its trusts with diligence, without negligence, and in entire fidelity to its inhabitants. Without such an obligation resulting from the relation it was to bear to the people within its boundaries, no public charter ever would have been granted to it by the legislature. As the corporation itself, being an artificial body only, cannot render this service of itself, it may employ agents for such purpose; and, in fact, constantly does so. Under the authority of its charter, and the ordinances passed in pursuance of legislative power, it oftentimes authorizes by license parties not in its employ to do certain things; as, for example, in the case before us, to open the public streets and sidewalks with trenches, to connect house-drains, water or gas pipes, with the public mains in the street, taking from them, or having the power to take, indemnity to protect the city from suits of liabilities of any kind growing out of the grant of such privilege, which, like all privileges, may be abused in some way to the detriment of an individual. This case is an example of such a privilege ; and if you give full credit to the plaintiffs’ testimony, of detriment to them, resulting therefrom by carelessness in using it. The defendant’s counsel claim that no liability on account of it devolves upon the defendant, and plant themselves upon the ground that the person to whom the privilege was granted was neither its servant nor agent in the work he undertook, but was acting as an [527]*527independent contractor entirely, to whom the plaintiffs must look for their redress; and they have referred the court to a great number of authorities upon the point that a municipal body is not liable for the act or omission of such a party executing a public work. Without gainsaying the general proposition made to the court, we instruct you that it does not apply to cases where, as in this case, the party using the privilege is no contractor with such a body at all, but, by its consent, is allowed to use such privilege for private advantage alone. As such involves what, without the permission, would be a public nuisance, it is the duty of the municipal body to see to the work the same as if it were being done by its own agents, in order that it may be done diligently and properly, and not negligently, to the risk of detriment to individuals. As the work could not be done without its permission, to hold it not responsible for the consequences of negligent conduct in doing it would be to ■say that it could at pleasure relieve itself of its public duty of taking care that the streets of the city are maintained in safe condition for ■the use of passengers, and so as that no damage shall accrue to individual parties in doing work in them, such as has happened to the plaintiffs in this action or otherwise. The public duty we are considering is one that at no time can be extinguished or abated even at the mere will and pleasure of the municipal body, or of its own accord. It is as obligatory upon it as is the payment of taxes upon an individual, and can neither be assigned nor transferred to individual parties, so as to relieve itself from such incident to its existence. It may make contracts with individuals to perform its public duty for it, and take indemnity therefor, and enforce such indemnity, but that does not relieve it, as to the citizen, of such public duty. It is on this account that, as the authorities cited upon the point by the plaintiffs’ counsel .show, where a work is being done by permission of a municipal body, of a kind likely to cause, or that may cause, injury to individuals, it is the part of such body to exercise a vigilant supervision of the work, to see that no detriment to them ensues. Not to [528]*528do this is held to be negligence, for which it is liable to a party injured. Further elaboration of this point is unnecessary.
The result of the examination we have been able to give the cause of this case in the brief time allowed us is that, if the damage to the plaintiffs from the flooding of their cellar was in your opinion, from the testimony, the consequence of negligent work of the plumber in stopping" the end of the drain-pipe in Delaware avenue, and the trench thence to the wall of No. 1006, or either, and that if the officers of the defendant had given supervision to the work, as was incumbent on them, the disaster would not have happened, then neglect to do so, if there was such, on their part, was the cause of the accident, and the city is liable for the consequence of it. In fact, the issuance of the license to excavate before permission was obtained by the license to connect with the private sewer in the street, as shown by the plaintiffs’ proof, was an act of negligence on the part of the defendant’s agents; and, it having been testified to that the work of attachment to the private sewer was suspended on the afternoon before the flood came, to recéive. said permit, and could have been finished if it had been received, the injury to the plaintiffs could hardly have occurred through flowage of water through the drain-pipe, if such attachment had been made; and if you believe from the testimony that it did happen for want of such attachment, or from neglect of duty by the agents of the city to see that the trench was properly filled up,—if you think the water got into the cellar of No. 1006 through that channel,—then the defendant is liable for the plaintiffs’ damages, and the defendant, and not the plaintiffs, must look to the plumber for responsibility. Should you find for the plaintiffs, they are entitled to recover for such damage as you believe they sustained as- the natural and probable consequences of the flooding, according to their proof, whatever that may be, taking all the items of damage alleged into consideration, and adopting such of them as you think right; but, with respect to any damage that is alleged to have occurred afterwards, you should not allow for any of that, if it [529]*529could have been avoided by the plaintiffs. They could not enhance the defendant’s liability by putting their goods where they knew they would be injured, or had reason so to believe ; but for inability to use their cellar, which I believe is one of their items, they may recover, if claim is made on that account.
Verdict for the plaintiff.