Chidester v. Consolidated Ditch Co.
Before: Thornton
Synopsis
Appeal from a judgment for the plaintiff in the Thirteenth District Court, Tulare County. Campbell, J.
The following are instructions four, five, and eight, referred to in the opinion:
“ 4. If the defendant’s ditch, in its course, runs across the natural channel of Yokohl Creek in such a manner that the waters of said creek, in their course, necessarily enter the ditch, and if, during heavy rains or freshets, this ditch was not of sufficient capacity to contain all the natural waters of said creek, together with such additions thereto as came down the ditch from above said creek, it was defendant’s duty to see that no more water entered the ditch than it would safely carry through plaintiff’s land without detriment or injury to plaintiff’s land; and for any direct injury to the lands of plaintiff, caused by the overflow of the waters entering this ditch, resulting directly from the negligence of defendant in keeping the same in good repair, or in the manner of its use while under defendant’s exclusive control, defendant is responsible for such damage as he has sustained by reason thereof.
“ 5. The defendant was not liable for damages done plaintiff’s ranch by the natural waters of Yokohl Creek, provided the damage was not in any way caused by defendant’s ditch, or its waters; but if the jury believe from the evidence, that defendant’s ditch was not in good condition, if it was filled with sand, and if, in high water, the defendant permitted the waters of said creek to throw out and carry this sand from defendant’s ditch on to plaintiff’s land, then the defendant is liable for the damages caused thereby.
“ 8. If the jury believe from the evidence, that the natural tendency of the waters of the Kaweah was down the St. John’s Eiver, and away from plaintiff’s land, and that between May 6th, 1874, and November, 1876, defendant caused dams to be placed in the stream, so as to cause the waters to flow into the Kaweah, and down its ditch, and that these acts caused more water to flow down the Kaweah and into said ditch than said ditch could carry, and the injury complained of was caused thereby,- defendant was responsible for such acts.”
It appeared from the evidence, that a subpoena had been issued for the attendance of the witnesses Adams and Gilliam, and the Sheriff made return that he had made diligent search and could not find them in Tulare County, and a witness testified that he had made inquiry, and had not seen them for a year, and had heard that they were out of the State. The witness only knew by hearsay that they were out of the State.
The Court: We are satisfied with the reasons given in the opinion of Department Two, filed in this cause December 24th, 1880. Therefore the judgment is affirmed.
The following is the opinion of Department Two, referred to in the foregoing opinion:
Thornton, J.: This action was brought to recover damages caused by the neglect of the defendant to keep a ditch owned by it in proper repair, so that the waters thereof overflowed its banks, flowed over .plaintiff’s lands, cutting channels and sloughs through the same, and depositing therein large quantities of crude sand, destroying plaintiff’s crops and grasses, and washing away his fences.
The complaint contains three counts. They are substantially the same except as to the periods of the alleged negligence. In the first count, the averments set forth a neglect [201]as above stated from the 24th of November, 1873, to the 15th of July, 1874, in the second from about the 24th of November, 1874, to about the 15th of July, 1875, and in the third from about the 15th of November, 1875, to about the 15th of July, 1876. The allegations of the complaint above referred to were denied by the answer. The cause was tried before a jury, who rendered a verdict for the plaintiff in the sum of three hundred and forty dollars. Judgment was entered on the verdict. From this judgment defendant appealed, assigning sundry errors in the rulings of the Court in admitting or excluding testimony, in giving and refusing instructions, and further claiming that the evidence is insufficient to justify the verdict. These errors are all specified in a bill of exceptions embodied in the transcript.
The evidence was such that it was proper to submit the case in some of its aspects to the jury. If there was a substantial conflict on these aspects of the cause, the judgment should not be reversed for insufficiency of the evidence to justify the verdict. The phase which the cause assumed, rendering its submission proper, is that regarding the alleged negligence of the defendant; and as negligence in many cases is a deduction from facts where there is no conflict, such deduction must be made by the triers of the facts, whether jury or Court, and when such a case presents itself—and this is such an one—it would be an usurpation of power in this Court to set aside the verdict of the jury, and reverse the judgment on the ground of the insufficiency of the evidence to justify the verdict, where the tribunal whose duty it is under the law to determine the result of a fair deduction from the evidence, has found that such result demonstrates negligence. The verdict would doubtless be set aside, where it may be concluded that in the judgment of reasonable men no such deduction could be drawn as that apparent from the verdict, but in no other case should this be done. In a case where reasonable men might, upon deliberation, differ in their conclusions, it would be improper for this Court to interfere with the verdict on the ground on which it is asked to do so in this case. Such a deduction from facts previously determined, must be based upon the experience and observation of the triers, and the experience and observation of this Court ought,
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