Klein v. San Pedro, Los Angeles & Salt Lake Railroad

THOMAS, J.

In his complaint plaintiff alleged that he had sustained certain damages to his real property adjacent to and abutting upon the Arroyo Seco, in the city of Los Angeles, by reason of the wrongful acts of defendant in so constructing (1) its railroad trestle bridge, and (2) a certain rock bulkhead across and within said Arroyo Seco, as to obstruct the same in time of flood, and to cause the water therein to be dammed up and diverted from its regular course and channel over and across the real property of plaintiff, cutting and washing it away. There was a verdict for plaintiff for one thousand dollars, and judgment was accordingly entered in his favor. Defendant filed a motion for a new trial, which was denied. From the order denying said motion, and the judgment so entered, defendant appeals.

[457]

Defendant urges that the order and judgment should be reversed upon several grounds, which, for convenience here, may be grouped under two heads, viz.: (1) Errors of law occurring during the trial, including errors in giving certain instructions to the jury; and (2) insufficiency of the evidence to justify the verdict.

Much space is devoted by appellant in support of this appeal to the argument of the point that the lower court erred in denying its motion for a directed verdict, and which argument is indeed very persuasive. After quoting at length from the evidence, appellant, in its opening brief, says: “It results, therefore, that the witness Jessup’s testimony to the effect (1) that the bridge was constructed with due care and engineering skill, (2) that the bents thereof were practically parallel to the stream, (3) that the bridge was of approved construction and standard, (4) that the available waterway provided by it was infinitely more than was necessary for any flood which happened in the arroyo, (5) that it was constructed in such a manner as to afford security for life and property, (6) that the arroyo crossed by the bridge was restored to its former state' of usefulness, and (7) that the usefulness of the arroyo on the property adjoining it was not impaired, is absolutely uncontradicted by any witness, and stands unimpeached and is unimpeachable.” If this comprehensive and far-reaching statement is supported by the record here, it would seem that no other point need be considered. We shall see.