63 Neb. 380 | Neb. | 1901
The defendant in error is the owner of the east half of the south-west quarter of section 31, in township i of range
The first assignment discussed by the plaintiff in error is instruction No. 13 given by the court, which is as follows : “The plaintiff sues upon three counts, damages for the flood occurring June 6, 1896, for the flood occurring June 30, 1896, and for the flood occurring April 23, 1897. You will estimate the damages, if any, occurring at the time of each flood separately, and if you find defendant liable for the damages caused by any one flood and not for the others, you will confine the amount you find to the damages suffered at such time, but will bring in your verdict for the total amount of damages for which defendant is liable, If you find the defendant railroad company was
The next assignment of error discussed in plaintiff’s brief is the eighth instruction, as follows: “If you .believe, however, that on said June 30, 1896, said embankment and the opening therein were so constructed' as not to allow the discharge of the surface waters ordinarily flowing down or which might reasonably be expected to flow doAvn said channel, and that by reason of such faulty construction, the plaintiff was. damaged by said surface waters, then the plaintiff Avould be entitled to recover upon the second cause of action for damages caused by said flood of June 30th.” As the material question in this case is the negligence of the company in not providing a sufficient opening in its embankment for the discharge of the surface Avater accumulating in the raAÜne or draw under the circumstances shown by the evidence in this case, Ave think it proper to state the objections taken to this instruction in the language used by the plaintiff in error in its brief, as follows: “This Avas clearly erroneous, as it assumed as a matter of law that if ‘said embankment and the opening therein were so constructed as not to allow the discharge of the surface waters,’ the railway company was guilty of negligence. In other words; the court told the jury by this instruction that, if the railway was ‘so constructed as not
We have given the argument and the citation of authorities in support thereof made by the plaintiff in error in order that its contention may be fully understood. If we understand the argument, it is to the effect that the common-law rule in relation to surface water is in force in this state, and that a railroad company, in common with other proprietors of land, may claim the benefit of that rule. At common law the proprietor has a right to protect his real estate against surface water. In doing so he may
Complaint is made of the concluding paragraph of the sixth instruction of the court. Taking that part of the instruction alone, it would probably be incorrect and misleading, as the jury was told that the company was liable for not providing for the deposition of surface water which might injure the plaintiff. As we have seen, and as was held in Morrisey v. Chicago, B. & Q. R. Co., supra, the company was under no obligation to guard against the flow of surface water upon the premises of the plaintiff under ordinary circumstances, and where the conformation of the surrounding country did not force the water toward a common point of final drainage, and through which it had run
Complaint is further made that the court refused an instruction tendered by the plaintiff in error to the effect that if the floods, or either of them, which did the damage complained of, were unprecedented in character, and of such force and volume as to make them, or either of them, without parallel in the vicinity in which they occurred, and were such as not to be anticipated, then for the damage done by such floods the defendant would not be liable. The court, we think, correctly refused the instruction. In the first place, no defense of that character was tendered by the answer filed by the defendant; and, secondly, there is no evidence that the floods of June 6,1896, and April 23, 1897, were of the character described in the instruction. There was some evidence offered by the defendant company tending to show that the storm of June 30, 1896, was unprecedented in its character and force. After both parties had rested, the defendant asked leave to amend its answer to conform to the evidence, by alleging that the damages, if any, which occurred from the flood of June 30, 1896, were the result of such unprecedented storm and the act of God. This request Avas refused, and the ruling of the court is one of the errors assigned. Numerous authorities are cited to the effect that, where evidence is offered and received without objection upon a question not made an issue by the pleadings, the court may alloAV an amendment to conform the pleadings to the evidence. The practice of allowing amendments under the circumstances shoAvn in the cited cases has undoubtedly been in force almost from the adoption of the Code practice. In many instances it has, Avithout doubt, been in the interest of justice; and this court would hesitate to take any stand to discourage
We recommend the affirmance of the judgment,
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.