court. In its entry the court of appeals certified that it found that the judgment upon which it had 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 Standard Extract Company v. H. Belmer Company. It therefore certified the record of the case to this court for review and determination.

Messrs. Lindsey & Berry, for defendant:

Damages, if any, were occasioned by an act of God, and defendant is not liable.

Pittsburgh, C. & St. L. R. Co. v. Staley, 41 Ohio St. 118, 52 Am. Rep. 74; Loeser v. Humphrey, 41 Ohio St. 378, 52 Am. Rep. 86, 12 Am. Neg. Cas. 487; 2 Greenl. Ev. § 219; Sharp v. Cincinnati, 4 Ohio C. C. N. S. 19; Covington Transfer Co. v. Kelly, 36 Ohio St. 86, 38 Am. Rep. 558, 12 Am. Neg. Cas. 461; Adams v. Young, 44 Ohio St. 80, 58 Am. Rep. 789, 4 N. E. 599; Fent v. Toledo, P. & W. R. Co. 59 Ill. 349, 14 Am. Rep. 13; Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. 44, 19 L. ed. 65; Houston & G. N. R. Co. v. Parker, 50 Tex. 330; Brown v. Pine Creek R. Co. 183 Pa. 38, 38 Atl. 401; Gulf Red Cedar Co. v. Walker, 132 Ala. 553, 31 So. 374, 11 Am. Neg. Rep. 179; Todd v. Cochell, 17 Cal. 97, 10 Mor. Min. Rep. 655; Mulrone v. Marshall, 35 Mont. 238, 88 Pac. 797; Baltimore & O. R. Co. v. Sulphur Spring Independent School Dist. 96 Pa. 70, 42 Am. Rep. 529; Taylor v. Canton Twp. 30 Pa. Super. Ct. 305; Siegfred v. South Bethlehem, 27 Pa. Super. Ct. 456; Miller v. Northern P. R. Co. 24 Idaho, 567, 48 L.R.A. (N.S.) 700, 135 Pac. 845, Ann. Cas. 1915C, 1214; Central Trust Co. v. Wabash, St. L. & P. R. Co. 57 Fed. 448; Crawford v. Rambo, 44 Ohio St. 279, 7 N. E. 429; Welty v. Vulgamore, 1 Ohio C. C. N. S. 553.

Messrs. D. B. Van Pelt and A. W. De Weese for plaintiffs.

Johnson, J., delivered the opinion of the court:

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 ex

traordinary 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 legislature, 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 way, injured; and this was done as a recessity for the public health, safety, and convenience. The validity of this legislation was upheld in the following June in Assur v. Cincinnati, 88 Ohio St. 181, 102 N. E. 702, 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 possibil

ity 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 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, co-operating 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. The propositions it contains have substantially been ap

proved by the authorities. 1 C. J. 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 Water

act of God.

storage-injury

-liability.

to and independently of any negligence by defendant, there is no liability. In 1 Shearman & Redfield on Negligence, 6th ed. § 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 pro- causeduced the same damage, whether the defendant had been negligent or not, his negligence is not deemed the cause of the injury."

Proximate

definition.

In Central Trust Co. v. Wabash, St. L. & P. R. Co. (C. C.) 57 Fed. 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 against by the exercise of ordinary and reasonable foresight, care, and skill."

These general principles are also declared in Baltimore & O. R. Co. v. Sulphur Spring Independent School Dist. 96 Pa. 65, 70, 42 Am. Rep. 529, and Crawford v. Rambo, 44 Ohio St. 279, 7 N. E. 429. 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. 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:

"(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 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.

Appeal

definition.

Where, from a view of the whole charge, it is seen that the jury has been given a comprehensive and intelligent instruction concerning the is- instructionssues and the mean- want of ing 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 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 cannot 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, 58 Am. Rep. 789, 4 N. E. 599.

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 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 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 26-foot levee I 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 plaintiffs 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.

This note is confined strictly to a discussion of the comparatively few cases wherein an instruction has been complained of because, having defined a technical or legal word or phrase, the court thereafter used that term without definition. The cases involving the refusal of a specific request for the definition of a term which was defined in the general charge are excluded.

V.

It is uniformly held that where the jury has been once informed as to the meaning of a legal or technical word or phrase, it is not necessary to repeat the definition or explanation in the same or other instructions. Where a term has been once intelligently and comprehensively defined, repetition is not only unnecessary, but undesirable, since it unduly impresses the jury with the idea of the importance of the point of law with which the word is connected. Castner v. People (1919) Colo. -9 184 Pac. 387; Hinton Muhlman (1916) 201 Ill. App. 177; Sells V. Grand Trunk Western R. Co. (1918) 206 Ill. App. 45; Louisville & N. R. Co. v. Logsdon (1903) 114 Ky. 746, 71 S. W. 905; W. M. Ritter Lumber Co. v. Jordan (1910) 138 Ky. 522, 128 S. W. 596; State v. Renfrow (1892) 111 Mo. 589, 20 S. W. 299; State v. Dipley (1912) 242 Mo. 461, 147 S. W. 111; Holt v. State (1907) 51 Tex. Crim. Rep. 15, 100 S. W. 156; Wheeler v. State (1909) 56 Tex. Crim. Rep. 547, 121 S. W. 166; Haynes v. State (1913) 71 Tex. Crim. Rep. 31, 159 S. W. 1059; Glover v. Houston Belt & Terminal R. Co. (1914)

Tex. Civ. App., 163 S. W. 1063. And see the reported case (PIQUA v. MORRIS, ante, 129).

In Hinton v. Muhlman (1916) 201 Ill. App. 177, the court, in instructing the jury as to the measure of damages in an action for assault and battery, did not define the term "unlawful assault." It was held that since the term had been previously defined, repetition was not necessary.

In Sells v. Grand Trunk Western R. Co. (1918) 206 Ill. App. 45, it appeared that the plaintiff was injured while in the employ of the defendant, and brought his action under the provisions of the Federal Safety Appliance Act. The court said as to the charge: "Objection is made to it on the ground that it does not define the term 'contributory negligence,' but it appears that this term is fully defined in another instruction. It is not necessary, of course, to repeat such a definition in each instruction."

In Louisville & N. R. Co. v. Logsdon (1903) 114 Ky. 746, 71 S. W. 905, the court instructed the jury that the word "negligence" meant the failure to use ordinary care, and later in the paragraph charged that if the jury believed that the defendants "negligently" pushed a car into the one on which plaintiff was working, they should find a verdict for the plaintiff. The defendants criticized the instruction because the word "negligently" was not defined. The court, in holding that it was not necessary to repeat the definition, said: "The court defined the word 'negligence' as meaning the failure to use ordinary care, and with this definition we see no objection to the use of the word 'negligently' in this instruction."

In W. M. Ritter Lumber Co. v. Jordan (1910) 138 Ky. 522, 128 S. W. 596, it appeared that the plaintiff had been injured while in the employ of the defendant. The court charged the jury that if the plaintiff was injured. through the negligence of the defendant, they should find for the plaintiff. In a later instruction the word "negligence" was defined. Defendant insisted that the first part of the charge did not restrict defendant's negligence to that alleged in the petition, but included any negligence. It was held that the definition of negligence as given applied to the word as used in the entire charge.

In State v. Renfrow (1892) 111 Mo.