(аfter stating the facts as above). Though these are actions for damages occasioned by the same flood which was involved in the prior cases of Soules v. Northern P. R. Cо.
The cases, however, must be decided upon the law as announced in the prior case of Reichert v. Northern P. R. Co. supra. According to that case the matеrial questions to be decided are: Was the waterway or drainway the natural and accustomed channel for the escape of surface waters, and did the railway сompany so obstruct the same
The rule seems to be well established that “the failurе of a special verdict to find upon any material fact in issue is equivalent to a finding against the party upon whom the burden rests to establish such fact.” We do not, however, cоnstrue this rale as the defendant evidently construed it, and that is, that such failure will in all cases be construed against the plaintiff, who has, of course, the general burden of proof in аll actions of negligence, but rather as against the party whether, plaintiff or defendant, upon whom the particular burden rests to establish the particular fact, and whether suсh fact is necessary to the plaintiffs’ case or necessary merely to the defense of the defendant. See Brazil Block Coal Co. v. Hoodlet,
Under this rale the special verdict found that the railroad embankment crossed a natural channel for the drainage of surface waters; that the 4-foot culvert maintained by the defendant, if unobstructed by any floating street platform or other debris, was not of sufficient size and capacity to take care of all of thе rain that fell on July 28, 1914, up to 6: 30 o’clock on that day; that the running off of the water of the culvert under the track was not obstructed or blocked by the-street culvert crossing and other debris rеferred to in the testimony; that the storm of July 28, 1914, was such a storm that might reasonably be expected to occur in the vicinity; that an ordinary prudent man residing in this region should have anticipаted from his general
So far there is no finding tbat tbe flooding of tbe property of tbe plaintiffs was due to tbe water backing up from tbe railroad embankment or from tbe сulvert under tbe same, and tbe only finding in relation thereto are tbe following questions and answers: ¡
Q. Is it just as probable tbat tbe flooding of tbe Masonic Temple basement and tbe damages to plaintiffs’ property was occasioned by causes other than tbe negligence of tbe defendant railroad company, if you find said railroad company was negligent ?
A. No.
Q. This question and answer is entirely unsatisfactory, as tbe question is clearly double, and prior thereto there is no specific finding of negligence. Following is tbe specific finding:
Q. Did water coming down either Sim street or First street, north from tbe west, flow over tbe sidewalk and into tbe basement of tbe building occupied by Boulger & Hughes, thus damaging plaintiff’s property ?
A. Yes.
If this question and answer means anything, it means tbat tbe water on its way down from tbe elevation above flowed onto tbe plaintiffs’ property, and it nowhere bolds tbat it was a defective culvert tbat occasioned tbe damage, or tbat tbe water so flowing was backed up from tbe embankment.
Following it are tbe following questions:
Q. Did any water otherwise than tbat backed up from tbe railroad culvert run into tbe basements of tbe Masonic Temple, thus damaging plaintiff’s property?
A. Yes.
Q. Did water run into tbe basements of tbe Masonic Temple before tbe railroad culvert under tbe tracks was running full ?
A. Yes.
Q. If you answer number 16 in tbe affirmative, about bow much water bad run in? ; -- ' »
A. Do not know.
It is well еstablished that where it appears that part of the damage was caused by a third party or a third cause, the plaintiff, unless a conspiracy or joint tort can be proved, can only recover against the defendant such damages as he can show were occasioned by the defendants’ wrong.
As was well said in the case of Watson v. Colusa-Parrot Min. & Smelting Co.
We find no inconsistency in the special findings, and the resрondents themselves contend that there are none. Even though finding No. 6 is somewhat confusing on account of the double nature of the question, it is well established that positive findings finding matеrial facts, which are conclusive of the controversy, overcome those which are merely incidental. Robinson v. Washburn,
This being the case the court, rather than ordering nеw trials, should have granted the plaintiffs’ motions for judgments upon the special findings; that is to say, if the orders appealed from were appealable at all, and this court has jurisdiction in the premises.
We are of the opinion that the orders were appealable. Section 7841 of the Compiled Laws of 1913 makes, among others, orders ap-рealable, which affect “a substantial right . . . when such order in effect determines the action and prevents a judgment from which an appeal might be taken.” It also makes aрpealable orders granting or refusing a new trial or sustaining or overruling a demurrer, and an order which “involves the merits of an action or some part thereof.”
We are of thе opinion that the orders overruling the motions for judgments on the special verdicts both involved the merits of the actions and prevented the rendition of judgments- from which appеals might be taken, coupled as they were with the court’s granting new trials on his own motion.
In the cases at bar both parties moved for judgments on the special verdicts of the jury. The cases were not similar to that of Persons v. Simons,
The orders appealed from are reversed, and the causes are remanded, with directions to enter judgments for the defendant, dismissing the several complaints.