73 Colo. 93 | Colo. | 1922
delivered the opinion of the court.
Defendant in error was plaintiff below and had a verdict and judgment against plaintiff in error for $15,000 on account of damage to its land by seepage from defendant’s reservoir. The plaintiff in error argues three points: 1. The evidence is insufficient; 2. The jury viewed the premises and looked at certain holes of which no testimony had been given; 3. Erroneous instructions were given and proper ones refused.
As to the first, the engineer witnesses for both sides
As to the second: Testimony had been given of many holes bored to learn the position and course of the underflow. Upon the view by the jury, under order of court, the jurymen looked at other holes on the land of plaintiff in the corrals as well as those of which testimony had been received, and this is assigned as error. We do not think it was ground for a new trial. The jury upon view is expected to look at everything on the viewed premises. They are not confined to the matters and things mentioned in the testimony given in the court room. Yet, if they were, the witness Rhodes testified concerning water in the corrals. This is a different matter from an examination by some of the jury on their own motion without leave of the court. There was no proof of tampering with water in the holes and the court was right in overruling the motion for new trial on that point.
As to the third point:
(a) Instruction No. 1 given by the court was perhaps erroneous, but the only objection made to it was that it contained quotations from the second defense of the answer upon which no evidence had been offered and which were not relied on at the trial. The substance of the matter quoted was that the damage to the plaintiff’s land was caused by high water in the river, heavy rains and seepage from the Putnam ditch. It was improper to plead the matter quoted because it was merely evidential, tending to show that the damage to plaintiff’s land was not due to percolation or seepage from defendant’s reservoir and so to support defendant’s denials. Payne v. Williams, 62 Colo. 86, 160 Pac. 196; Swanson Theater Co. v. Pueblo Co., 70 Colo. 83, 86, 197 Pac. 762, and cases there cited. But we cannot say that the quotation of it was certainly prejudicial and cannot presume it to be so. We do not
We cannot consider the other objections now made to instruction No. 1, because they were not made to the court below. Rule 7.
(b) The defendant introduced evidence tending to show that plaintiff’s land could be drained and the damage averted, and plaintiff sought to introduce evidence to rebut it; then the court of its own motion refused to permit the rebuttal, stating that the defendant’s evidence on that point would be “instructed out” and thereupon, on motion of plaintiff, struck out the said evidence of defendant. The defendant’s counsel did not object or except to this order, indeed took no part in the colloquy between the court and plaintiff’s counsel on the point, but when the court gave instruction No. 3, as follows:
“All evidence introduced for the purpose of showing the feasibility of construction of a drainage system for the drainage of plaintiff’s land is stricken out and should not be considered by the jury,” defendant objected and excepted.
The order and instruction were erroneous. Such evidence was cogent and weighty upon the question of the amount of damages. The damage claimed was $20,000. Suppose it could, be proved that although the land water-soaked was worth $20,000 less than when dry yet for $1,000 its value could be restored by drainage? The question answers itself. 17 C. J., 1038, and cases cited; Mustang Reservoir Co. v. Hissman, 49 Colo. 308, 310-11, 112 Pac. 800; Colorado Springs Co. v. Albrecht, 22 Colo. App. 201, 123 Pac. 957; Hanrahan v. Baltimore, 114 Md. 517, 80 Atl. 312.
The court ordered the evidence stricken and gave the instruction on the ground that the feasibility of drainage had not been pleaded; but the evidence went to negative
The serious question here is whether the defendant is barred from objecting to the instruction by his failure to object or except, to the order striking out his evidence. We think he is, because, by reason of the stand taken by the court at the time of the order, plaintiff was prevented from rebutting and the defendant by failing to object or except impliedly consented to the order. To allow him to practically reinstate such evidence (which would have the effect of sustaining his objection to the instruction in question) would prevent rebuttal and be unjust.
(c) Defendant objected to instruction No. 13 on the ground that it assumed that 267.4 acres was the exact amount of land damaged, whereas the amount was in issue, We do not so construe the instruction. Under it the jury might well find that any amount of land less than 267.4 was damaged.
(d) The court instructed the jury (Instruction No. 16) that “evidence offered or received for a special purpose can be considered for no other,” and defendant tendered an instruction to the opposite effect, as follows:
“Testimony introduced by a party for a certain expressed object, cannot be limited by that object alone but must be taken and applied to any and all purposes of the case according to its own force and natural effect.”
The instruction given is erroneous. The rule should be, and, as we understand it, is, that when evidence which is competent for but one purpose is admitted for that purpose it may be considered for no other (Melcher v. Beeler, 48 Colo. 233, 237, 110 Pac. 181, 139 Am. St. Rep. 273), and that evidence admitted for one purpose may be considered for every purpose for which it is competent so far as it is relevant to the issues in the pleadings. Sill v. Reese, 47 Cal. 294, 340; Riverside Water Co. v. Gage,
The instruction requested by defendant was too broad. Under the above rule it is not unqualifiedly true. Moreover there was no evidence introduced expressly for a certain object. The request, therefore, was rightly refused.
Whether the instruction given was so prejudicial as to justify a reversal we do not wholly agree and do not find it necessary to decide because the case is reversed on other grounds.
(d) Objection is made to instruction 12 that it does not state the correct measure of damages, but no objection was made to it at the trial and we therefore cannot consider it. Rule 7. Counsel cite Northern Colo. Irrigation Co. v. Reuter, 67 Colo. 483, 486, 186 Pac. 286, to the effect that it is the court’s duty of its own motion to instruct correctly as to the measure of damages. That may be the law but the case does not decide that an instruction given without objection may be the ground for a new trial.
(e) The complaint alleges injury from seepage and percolation. The court instructed the jury that proof of negligence was not necessary, but that a reservoir owner was, with certain, exceptions, absolutely liable for damages by “escaping” water, and, against defendant’s objection, added:
“If you find in this case that water escaped from this reservoir by seepage, percolation or otherwise and entered in or upon the land of plaintiff thereby damaging the same, then the defendant is liable therefor.”
It is claimed that the instruction was irrelevant to the issues, which we think is true, because, by the use of the word “escaping,” unqualified, together with the words “or
For giving this instruction the judgment must be reversed. Judgment reversed and new trial granted.
Mr. Justice Campbell not participating.
