Negligence — Watercourses — Discharge of water — Upper owner of property — Injury to child on property of lower owner — Causation — Restatement, Torts.
1. In an action for the wrongful death of plaintiff's 3 1/2 year-old child, in which it appeared from plaintiff's statement of claim that plaintiff was in possession of a property through which ran a ditch or watercourse, into which defendant, on the day of the accident, and without notice, discharged water in such volume as to increase its depth from three to six feet, but without causing the bank to overflow; and that plaintiff's son, while playing in the yard, near the watercourse, fell into the water after its level had been raised, and drowned; it was Held that the facts averred did not state a cause of action. [82-6]
2. Restatement, Torts, sections, 371 and 430, cited. [85]
3. An actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent. [85]
Waters and watercourses — Discharge of water — Upper and lower owners.
4. An owner of land through which a stream flows may increase the volume of water by draining it, without any liability for damages to a lower owner, provided the banks of the stream are not overflowed. [83]
Argued May 25, 1944.
PER CURIAM, June 30, 1944:
The judgment is affirmed on the opinion of Judge EAGEN of the court below.