63 P. 713 | Ariz. | 1901
The appellant, as plaintiff, brought an action in the. district court of Maricopa County against the appellee, as defendant, to recover damage for the injury caused to plaintiff’s (appellant’s) land, crops, and stock by the breaking of the canal owned and operated by the appellee, and the consequent flooding of the plaintiff’s premises. The complaint alleged that "the defendant, while operating and
The appellant has not incorporated in the record any of the
On the question presented in the first assignment, the courts have held, without exception, in considering the refusal, of a trial court to give instructions requested by an appellant, that, unless the testimony upon which the instructions are predicated is before the appellate court, it is impossible to say whether or not the lower court erred in the refusal, and the court will therefore not review errors claimed to have been committed which involve a consideration of the facts as they may have been disclosed by the evidence. Ah Twine Gooslin v. Letson, 58 Kan. 814, 49 Pac. 157; Harris v. Barnhart, 97 Cal. 546, 32 Pac. 589. The well-settled rule of the courts in this respect is very happily stated in Frost v. Creamery Co., 102 Cal. 525, 36 Pac. 929. The court in that case said: "Defendant appeals from the judgment, and brings up the judgment-roll and a bill of exceptions,- which merely show the instructions given and refused, and.the exceptions thereto. Nothing else appears. A reversal is asked solely upon alleged errors in giving and refusing instructions. In such a case a judgment will rarely be reversed. All intendments are in favor of sustaining it. It does not appear what evidence, was or was not introduced, and we cannot tell upon what theory the ease was tried. Under these circumstances, the alleged error of the court below, in refusing certain instructions asked by appellant, cannot be considered as a ground for reversal. Nelson v. Lemmon, 10 Cal. 49; White v. Abernathy, 3 Cal, 426; Carpenter v. Ewing, 76 Cal. 487, 18 Pac. 432, and cases there cited. The same may be. said-of instructions given, unless they ‘would have been erroneous under any conceivable state of facts.’ Carpenter v. Ewing, supra.”
It is next claimed that two instructions given were erroneous. Appellant says: "The court erred in giving instruction No. 6 for defendant, for the reason that this instruction tells the jury that, if they believe from the evidence. ,. .at the plaintiff was guilty of contributory negligence, they must find
The complaint alleged that the plaintiff was damaged “by reason of the grossly careless and negligent manner of the management of the said ditch, and the grossly careless and negligent manner of carrying water therein.” The answer denied each and every allegation in the complaint. Under that answer, any fact, or state of facts, that tended to disprove negligence on the part of the defendant, could be put in evidence. Any evidence tending to show that the break was caused by the direct act or agency of the plaintiff, in taking out water for irrigation or for other purposes, or that after the first break was mended the plaintiff turned into the pasture where it had occurred a large, band of cattle or horses, that tramped down the .fresh earth where the bank was repaired, and that these or other possible acts were not known, by the company, and were of such nature, or committed under such circumstances, as not to import negligence on the part of the defendant in not being aware of them or anticipate their results, would have been competent under the pleadings, and would have fully justified the instruction.
It is next urged by the appellant that the court erred in allowing the judgment for the item of fifty dollars paid by defendant to the court reporter, and refusing, on motion, to retax the cost-bill by striking the said item therefrom. Our statutes provide (Rev. Stats, par. 895): “The successful party to a suit shall recover of his adversary ail the costs expended or incurred therein, except where it is or may be otherwise provided by law.” Paragraph 896: “On all motions the court may give or refuse costs at its discretion, except where it is otherwise provided by law.” Paragraph 902: “The court may for good cause, to be stated on the record, adjudge the. costs otherwise than as provided in the preceding sections of this act.” Paragraph 912: “The party in whose favor judgment is rendered, and who claims his costs, shall deliver to the clerk of the court a memorandum of the items of the costs to which he is entitled. He. may include in the costs all the necessary disbursements in the action or proceeding, including the fees of officers allowed. ...” Prom these provisions it will appear that the. determination and disposition of the costs in any given case are largely in the discretion of the trial court.
Counsel for the appellee contend on this subject that “the
Davis, J., and Sloan, J., concur.