Opinion, per JOHNSON, J.

agreed in the case was in conflict with the judgment pronounced upon the same question by the court of appeals of Hamilton county in the case of The Standard Extract Co. v. The H. Belmer Co. It therefore certified the record of the case to this court for review and determination.

Messrs. Lindsey & Berry, for plaintiffs in error. Mr. D. B. Van Pelt and Mr. A. W. DeWeese, for defendant in error.

JOHNSON, J. The verdict of the jury was general all of the issues made by the pleadings were resolved in favor of the defendant. This finding of course embraced the issue tendered in the second defense that in the exercise of due diligence and extraordinary care the defendant was unable to prevent the embankment of the hydraulic and "Swift Run" pond from breaking away; that it was not possible to cut a trench in the embankment at the county line, nor could defendant have protected plaintiffs' property by cutting the bank 500 feet north of the point at which it broke; and that the damages to plaintiffs, if any, were occasioned by an act of God, without any fault or neglect of defendant, its officers or servants.

The downfall of water in March, 1913, has passed into the history of the state as its most extraordinary and disastrous flood. The damage and suffering it caused throughout this and adjoining states is a matter of general knowledge. It was so widespread and so devastating that the legis

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Opinion, per JOHNSON, J.

lature less than a month after the flood passed what is generally known as the "Flood Emergency Act," 103 Ohio Laws, 760, to authorize the duly constituted authorities of the different subdivisions of the state to borrow and expend money for the purpose of the repair, reconstruction and replacement of public property and ways injured; and this was done as a necessity for the public health, safety and convenience.

The validity of this legislation was upheld in the following June, Assur v. Cincinnati et al., 88 Ohio St., 181, in which case the wholly unusual and unprecedented character of the flood was recognized and stated to be a matter of general knowledge.

The court of appeals in reversing the judgment of the common pleas in the case at bar held that there was error in the giving of defendant's charges Nos. 1, 2 and 6, hereinafter set forth, which were given before argument to the jury, and in employing in charges Nos. 2 and 6 "the terms 'intervenes,' 'proximate' and 'proximately,' being terms of technical significance, without explanation as to their application as to the evidence and the facts;" and in ignoring in charge 6 the possibility of contributing causes. It also found error in the general charge.

Before the giving of the charges requested by defendant the court had given a number of special charges requested by the plaintiffs, the first of which is as follows:

"The term 'Act of God' in its legal significance, means any irresistible disaster, the result of natural

Opinion, per JOHNSON, J.

causes, such as earthquakes, violent storms, lightning and unprecedented floods. It is such a disaster arising from such causes, and which could not have been reasonably anticipated, guarded against or resisted. It must be due directly and exclusively to such a natural cause without human intervention. It must proceed from the violence of nature or the force of the elements alone, and with which the agency of man had nothing to do. If the injury is caused by the agency of man cooperating with the violence of nature or the force of the elements, it is not the 'Act of God.' If there be the action of such a natural cause or force yet if the resulting injury is directly contributed to by the hand of man, it is not in law the 'Act of God.' If the injury is in part occasioned by the wrongful act or the negligent act of any person concurring therein and contributing thereto, such person will be liable therefor and this applies to a municipal corporation as well as to a natural person."

In addition to the above, the court had also given, at the request of the plaintiffs, five other special charges, in which the nature of the reservoirs involved in the case and their character as dangerous agencies in case of overflow or bursting of embankments are described. The duty of the city in such circumstances and its liability for damages occurring by reason of failure to perform the duty or for its negligent performance are also specifically and fully stated and explained.

Plaintiffs' charge No. 1, as above set out, is a correct and comprehensive statement of the law on the subject.

Opinion, per JOHNSON, J.

The propositions it contains have substantially been approved by the authorities. 1 Corpus Juris, 1172.

It is equally well settled that if the vis major is so unusual and overwhelming as to do the damage by its own power, without reference to and independently of any negligence by defendant, there is no liability.

In 1 Shearman & Redfield on Negligence (6 ed.), Section 39, it is said: "It is also agreed that, if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff's damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which, concurring with his own negligence, produced the damage. But if the superior force would have produced the same damage, whether the defendant had been negligent or not, his negligence is not deemed the cause of the injury."

In Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 57 Fed. Rep., 441, 448, the general rule as to the duty of the owners of dams and embankments to use care and skill in their construction and maintenance so as to not injure others in times of usual, ordinary and expected floods is stated, and it is there said: "But his liability extends no further, and he is not held responsible for inevitable accidents, nor for injuries occasioned by extraordinary floods, which could not be anticipated or guarded

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against by the exercise of ordinary and reasonable foresight, care, and skill."

These general principles are also declared in B. & O. Rd. Co. v. Sulphur Spring School Dist., 96 Pa. St., 65, 70, and Crawford v. Rambo, 44 Ohio St., 279. They are in keeping with the clear and plain dictates of justice. They hold a property owner to the performance of every proper duty to his neighbor, but they do not offend conscience by requiring the impossible.

It will be observed that the issues presented by the pleadings in the case we have here were evidently made in view of this state of the law.

In substance the charges of negligence against the city are that it failed to provide adequate outlets for the outflow of water in times of heavy rains; that it failed to keep existing outlets open as it should have done under the circumstances which involved probable danger; and that it unnecessarily cut the bank at or near plaintiffs' premises and thereby permitted the water to rush over plaintiffs' land.

The answer of the city denies all allegations of negligence and fault on its part, and in evident recognition of its duty in connection with the reservoir and banks contains the allegations above referred to, which, if true, relieved the city of any liability in the case, under the principles of law above stated.

Considerable testimony was adduced by the parties touching the issues thus made, and the contest from the first has been waged chiefly concerning the facts.