Opinion, per JOHNSON, J.

The court of appeals in the performance of its duty to consider the weight of the evidence did not find that the verdict in favor of defendant was not sustained by sufficient evidence.

The special charges given by the trial court and held to be erroneous by the court of appeals are as follows:

"1. Defendant before argument requests the court to charge the jury that if they believe from the testimony that an unprecedented rainfall and flood which could not have been reasonably anticipated by an ordinarily cautious person, was the efficient cause, the one cause that necessarily set in operation said causes contributing to plaintiffs' injury, that plaintiff cannot recover.

"2. Where an act of God intervenes between the wrongful conduct of the defendant and the injury complained of, this will relieve the defendant from liability, if the act of God appears to be the proximate cause of the loss or injury.

"6. Where the injury was proximately caused by the act of God, the law does not concern itself with duties, the observance or breach of which had nothing to do with the damage."

With reference to the use of the words "proximate" and "proximately," the court in its general charge, after fully and clearly stating the issues made by the pleadings, and defining the term "Act of God" substantially as it had been defined in the charge given at the request of plaintiffs before argument, explained to the jury the nature of instances in which acts of negligence of the nature of those alleged to have occurred in this case would

Opinion, per JOHNSON, J.

or would not be the proximate cause of injury, and charged that the burden of sustaining its defense that the "Act of God" was the direct and proximate cause of the injury rested on the defendant.

Where from a view of the whole charge it is seen that the jury has been given a comprehensive and intelligent instruction concerning the issues and the meaning of technical terms used, the fact that a particular legal or technical word is also used in a portion of a special charge, or in the general charge, without such explanation or definition, should not be held to be erroneous.

Now, in this case we think it clear that the only possible meaning which the jury could have given to charge No. 1 was that if they found that an unprecedented rainfall and flood, which could not have been reasonably anticipated, was the sole cause of plaintiffs' injury, plaintiffs could not recover. As to Nos. 2 and 6, when considered by the jury in the light of the general charge, we can not conceive that they could fail to understand fully the meaning of the terms "proximate" and "proximately," which were used in those charges, or that any prejudice could have resulted to the plaintiffs therefrom. Each case must be determined by its peculiar facts. And the question as to what was the proximate cause of injury in a case such as this is one of fact for the determination of the jury. Adams v. Young, 44 Ohio St., 80.

The court of appeals also held that the court erred in the following portion of its general charge, namely, "It is not material for you to determine whether defendant could have prevented the break

Opinion, per JOHNSON, J.

in the bank at the place where it occurred after its dangerous situation was discovered. There is no charge in the petition that the city could have prevented the same from breaking after its dangerous situation was discovered, and you may omit, therefore, that as a factor in determining the question of negligence."

Immediately following this portion of the general charge is the following: "On the other hand, if the city officials did cut the bank and as a result thereof the water flowed upon plaintiffs' lands which otherwise would not have gone there, it would be no defense that the cut was made to save lives or property, or for any other reason, because the answer does not attempt to justify the cutting of the bank, or give an excuse for doing so, simply denies that the city cut the bank."

The court proceeded to state, that, if the jury found that the city cut the bank, the city was bound to use ordinary care to preserve the property of others in releasing the waters; and, if it was possible by the use of ordinary care to have cut the bank at either of the other places, and thus to have saved the plaintiffs' property, it was its duty to have done so. And, further, that if the jury should find that the bank was cut by the defendant's agents "and by the authority of the city as I have heretofore defined it to you, then you must determine whether the bank if left alone and not cut would have gone out, and if it had gone out, whether the result would have been the same.

From a careful consideration of this record in connection with the general knowledge concerning

Opinion, per JOHNSON, J.

this extraordinary flood we think that the jury were convinced that the flood itself was the sole cause of the injury complained of and that it could not have been prevented by the doing of any of the things suggested.

An apt illustration which has been suggested is that if a river levee had been maintained at the height of 10 feet, and the custodians of the levee had been warned that flood waters might require a levee 16 feet in height, and they neglected to so increase the height of the levee, and an unprecedented flood should ensue, during which it should appear that a levee 26 feet in height would not have held the flood waters, the parties responsible for the levee would not be liable for negligence in failing to maintain a 16-foot levee when a 26foot levee would have been unavailing.

The answer in this case in effect tendered the clear issue that the damages to the plaintiffs' property were caused solely by the "Act of God." We think the finding of the jury amply justified by the record.

We have not been able to see that the supposed infirmities in the charge of the trial court, which have been pointed out by the learned court of appeals and by counsel, could have been prejudicial to the rights of the defendant in error, and the judgment of the court of appeals will be reversed and that of the common pleas will be affirmed.

Judgment reversed.

NEWMAN, JONES, MATTHIAS and DONAHUE, JJ.,

concur.

Statement of the Case

BULKLEY V. GREENE.

Judgments-Petition to vacate - Pleading and procedure-Section 11636, General Code - Trial by jury-Grounds to vacate Section 11635, General Code — Counterclaim.

1. When a petition to vacate a judgment is filed by a defendant, he must present therewith his defense to the action sought to be vacated. The grounds for vacation are heard and determined by the court upon the preponderance of the evidence, and if the defense is adjudged legally valid, and the grounds be sustained, the order of modification or vacation of the former judgment is held in abeyance until the final determination of the issues joined in the original action.

2. If the court, under the provisions of Section 11636, General Code, decides the preliminary issue in favor of the defendant and sustains his ground for vacation, the issues of fact joined in the original action are triable to a jury, or to the court if not a jury issue or a jury be waived.

3. A counterclaim cannot be made available under Section 11635, General Code, as a basis to vacate a judgment by confession. Such is not a defense to the action within the purview of that section.

(No. 15579-Decided April 2, 1918.)

ERROR to the Court of Appeals of Franklin county.

On April 5, 1916, F. F. Greene obtained a judgment against Lorenzo H. Bulkley on the latter's warrant of attorney, in the sum of $719. At the following term, May 23, 1916, Bulkley filed his petition in the common pleas court alleging the fact that judgment by confession had been taken against him, he not having been summoned or legally notified to appear at the time and place of taking such judgment. In his petition he sought a suspension and vacation of that judgment on the