City of Boulder v. Fowler,

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| Colo. | Apr 15, 1888

De France, C.

The principal claim made by counsel for appellant, as may be inferred from the argument, is that the verdict is contrary to the evidence. But the verdict of a jury cannot be disturbed in cases like the present, where the evidence is conflicting, and the verdict is not clearly opposed to the weight of the testimony. Barker v. Hawley, 4 Colo. 316" court="Colo." date_filed="1878-12-15" href="https://app.midpage.ai/document/barker-v-hawley-6560875?utm_source=webapp" opinion_id="6560875">4 Colo. 316. The motion for a new trial was properly overruled, and likewise the motion for a nonsuit.

*398The other errors assigned relate to the giving and refusing of instructions to the jury. The same proposition of law contained in the instruction refused was embraced in another instruction given, and there was therefore no error in the refusal. As a general rule, all the instructions in a case should be considered together, and in connection with each other, and with the testimony, in order to determine what errors, if any, there may be therein. Upon so considering the instructions given in this case, we find no error therein sufficient to warrant a reversal.

The care required of appellant, in the construction and management of said ditch, to avoid the injuries complained of, was ordinary care, such as a man of average prudence and intelligence would employ, under like circumstances, to protect his own property. Campbell v. Mining Co. 35 Cal. 679" court="Cal." date_filed="1868-07-01" href="https://app.midpage.ai/document/campbell-v-bear-river--auburn-water--mining-co-5436714?utm_source=webapp" opinion_id="5436714">35 Cal. 679. This action is based upon the negligence of the city in the premises, and that question was one for the jury under the evidence. The jury have passed upon it, as well as the other questions in the case, under instructions of the court fairly submitting such questions to them. Perceiving no error in the -record of which the appellant can complain, we think the judgment should be affirmed.

Stallcup and Rising, CC., concur.

Per Curiam.

Bor the reasons assigned in the foregoing opinion the judgment is affirmed.

Affirmed.