Wiedekind v. Tuolumne County Water Co.

Sharpstein, J. — This action is brought by plaintiff for alleged damages caused him by the breaking of de[199]fendant’s reservoir, by reason of which a large volume of ■water flowed over and into the mining claim of plaintiff, situated below said reservoir, filling said claim with earth, rock, and timber, and carrying away mining implements and a bridge constructed by plaintiff, and depriving plaintiff of the use of said claim during a period of four months. Plaintiff avers that said dam was poorly constructed, and at the time of the break was in a rotten and decayed condition, and was badly and carelessly attended by defendant, and by reason of such carelessness and negligence it broke away and caused the injuries of which plaintiff complains.

All the material allegations of the complaint are denied by the answer of the defendant.

The cause was tried by a jury, which returned a verdict in favor of plaintiff; and a judgment was entered in his favor for the damages awarded him by the verdict. Defendant moved for a new trial, which was denied, and from that order and the judgment he appeals to this court.

Appellant’s main contention is, that the evidence is insufficient to justify the verdict. He admits that a break occurred, by which the water of the reservoir escaped, but contends that it was not in the dam proper, but in the native earth at or near the east end of the dam, which, if proven, he claims would negative the averment of its having occurred .through carelessness or negligence in the construction or maintenance of the dam. But there is evidence tending to prove that the break occurred as alleged in the complaint, and that is sufficient to justify the verdict, although there is evidence tending to prove that the break occurred where the defendant alleges it to have occurred. It is a clear case of conflict of evidence, and we cannot disturb the order denying defendant’s motion for a new trial on the ground of “ insufficiency of the evidence to justify the verdict.”

[200]There are two exceptions to rulings of the court in sustaining plaintiff’s objections to questions asked of defendant’s witness Smith. After testifying that he had “ been in the water business thirty-five years,” and had “ had experience with earth dams,” he was asked by counsel for defendant: “ What is your experience and observation in regard to the breaking of such earth dams through the earth at one end or the other?”