No. 2,443.

#### BERNARDO MAUMUS, Appellant, *v.*JAS. D. CHAMPION, Respondent.

Action eoe Damages. — Negligence oe Plaintiee. — Where the negligence of the plaintiff has contributed proximately to the injury complained of, the defendant cannot be held liable, unless the injury is the result of a wanton or -willful act on his part.

Appeal from the District Court of the Seventeenth District, Los Angeles County.

Judgment was for defendant. Plaintiff moved for a new trial, which was refused; and from the judgment and order denying a new trial, plaintiff has appealed.

The other facts axe stated in the opinion.

*V.**E. *Howard & Son*and *7. Sepulveda,*for Appellant.

*jFirst.*"Where an act not willful, but the result of negligence, is the immediate and direct cause of an injury, an action of trespass, *vi et armis,*will lie. (18 Johnson’s Eep. p. 256. 19 Id. p..381. *Lecme*v. *Bray,*2 East. Eep. p. 595.)

*122Trespass *qu. claus.*will lie without an actual entry on the land. (Hill on Torts, yol. 2, p. 74.)

*Second.*A party is liable for damages caused by Ms lack of tbe care and skill ordinarily exercised in like cases. (Hill on Torts, yol. 1, p. 97.)

In order to avoid doing a damage to the property of another, he must use such care as a prudent man would employ under similar circumstances if he were himself the owner of the property exposed to damage. *(Campbell*v. *Water Co.,*35 Cal. 697.)

*lhird.*The rule releasing the defendantfrom responsibility for damages in cases where the plaintiff, by his own negligence or wrong, contributed to the result, is confined to cases where the act of the plaintiff, is the proximate cause of the injury. Proximate cause means negligence at the time the injury happened. *(Needham*v. *S. F. & S. J. B. B. Co.,*37 Oal.[p. 409.)

*A. Brunson,*for Respondent.

*Mrst*— Negligence is the omission to do something which a reasonable man guided by the considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. *(Bichardson*v. *Keir,*34 Cal., 63.)

The law only holds a man responsible for the ordinary prudent use of his own property — such use as men of common sense and prudence take of their own property when a failure to take it exposes them to a loss of it. *( Wolf*v. *St. Louis I. W. Co.,*10 Cal. 544. *Soffma/n*v. *Tuolumne Water Co.,*10 Cal. 413.)

If the ditch was owned and constructed and controlled by the defendant, he would then be liable only for gross negligence, or wanton injury, but not for a mere accidental injury where no negligence is shown. *(Tenney*v. *The Miners’ Ditch Co.,*7 Cal. 335.)

The mere fact of an injury having been suffered, is not enough to establish a charge of negligence. No one is responsible for an injury caused by accident, while he is *123engaged in a lawful business, even tbougb tbe injury was tbe direct consequence of bis own act, and tbe injured party was at tbe time lawfully employed and in' all respects free from fault. (Sberman and Bedfield on Negligence, Sec. 5.)

*A fortiori,*be would not be responsible wben tbe injured party was negligent or at fault.

Tbe burden of proof in an action for negligence always rests upon tbe party charging it. It is not enough for tbe plaintiff to prove that be has suffered loss by tbe act or omission of tbe defendant. He must also prove that tbe defendant in such act or omission violated a duty resting upon him. (Sberman and Kedfield on Negligence, Sec. 12.)

If a party in tbe exercise of a legal right, does an injury to another’s property, be is not liable for damages unless they were caused by bis want of tbe care and skill ordinarily exercised in like cases. (1 Hillard on Torts, 67.)

*Second*— Plaintiff directly contributed to tbe injury complained of, and tbe rule of law is that be alone must bear it. It is not essential to this defense that tbe plaintiff should in any degree have been tbe cause of tbe act by which be was injured. *(Colgrovey. New Haven B. B. Go.,*20 N. Y. 492.)

It is enough to defeat him if tbe injury might have been avoided by bis exercise of ordinary care. Tbe question to be determined in every ease is not whether tbe plaintiffs’ negligence caused, but whether it contributed to, tbe injury of which be complains. *(Brand*v. *Schenectady etc. B. B. Go.,*8 Barb. 368; *Needham*v. *S. F. & S. J. B. B. Go.,*37 Cal. 409.) In cases of mutual neglect, where it is of tbe same character and degree, no action can be sustained. *(Trowv. Vermont Central B. B. Go,.,*24 Yt. 487, 496.) So tbe plaintiff equally in fault with tbe defendant cannot recover. *(Aurora B. B. Go.*v. *Grimes,*13 Ill. 685.)

*Third*— Appellant says: “trespass *qu. claus.*will lie without an actual entry on tbe land.” If it lies in this case, it will carry tbe rule one step beyond that, and lie without *constructive*entry.

*124Temple, J.,

delivered tbe opinion of tbe Court:

Tbe complaint in tbis action is in tbe form of trespass, to recover damages for tbe negligent use of water in the irrigation of defendant’s premises, by reason whereof water overflowed tbe lands of plaintiff, and greatly damaged him.

Tbe statement of tbe evidence is not very clear to one not already familiar with tbe situation of tbe premises, and we are not perfectly sure that we correctly apprehend tbe facts of tbe case. It appears that tbe plaintiff and defendant own adjoining places in Los Angeles, and were in tbe habit of irrigating their lots from tbe zanja or public water works of tbe city. That a small flume led from tbe zanja, partly over tbe lands of plaintiff, to tbe premises of tbe defendant, and was used by both parties for purposes of irrigation. That tbe plaintiff bad cut a notch in tbe side of tbe flume, from which be was in tbe habit of taking out water, closing up tbis gate or notch when be was through with tbe water. On tbe occasion of tbe injury complained of, tbis notch or gate bad been left open by plaintiff, contrary to bis usual custom.

Tbe defendant, having occasion to use tbe water, purchased tbe right from the zanjero, or person in charge, and let tbe water from tbe zanja into tbis small flume and upon bis own premises. He did not observe that tbe flume was open at tbis notch so as to let tbe water upon tbe premises of plaintiff, and be did not look to see whether it was open or not. He let tbe water in about 12 o’clock M. and did not observe water upon tbe plaintiffs’ premises till some time after tbe middle of tbe afternoon, and then did not know where it came from. It was also proven that tbe plaintiff was in tbe habit of opening tbis notch while tbe defendant was using tbe water, and helping himself to what water be desired. There was some evidence tending to show that water was backed up and made to overflow tbe top of tbis flume in consequence of tbe defendant’s having closed a gate in tbe flume on bis premises, but tbis only raised a conflict in tbe evidence.

*125From tbis statement it appears tbat tbe negligence of tbe plaintiff in leaving tbe notch upon bis premises open, contributed proximately to tbe injury complained of. Tbe defendant could not, under tbe circumstances, be beld liable, unless tbe injury was tbe result of a wanton or willful act on bis part. Tbe evidence does not clearly show tbat be knew tbat be was causing an injury to tbe plaintiff, and we cannot, therefore, disturb tbe judgment rendered in bis favor.

Judgment and order affirmed.