92 Kan. 264 | Kan. | 1914
Lead Opinion
The opinion of the court was delivered by
C. G. Davis sued Coler L. Sim and others for injuries to his property caused by a flood which he alleged to have been occasioned by the giving way of a dam maintained by them, due to negligence in its construction. A verdict was rendered for the defendants, the special findings showing that the jury were of the opinion that the flood that caused the injury was not the result of the going out of the dam. Judgment was rendered in accordance with the verdict, and the plaintiff appeals.
A reversal is asked principally because of the over
The considerations upon which it must be decided whether the plaintiff showed sufficient diligence to entitle him to a new trial on the ground of the discovery of this evidence are somewhat complex. The new witnesses are Frank O. Hoff, his wife and daughter. The affidavits in support of the motion allege these facts: Hoff and his wife and their daughter were living near the dam at the time of the flood, as tenants of the defendants. When the plaintiff began looking up the evidence in his case, he knew that Hoff lived near the dam. He believed that Hoff might know something as to when the dam went out, and made search for him, finding him at Goddard, to which place he had moved. The plaintiff asked him what he knew as to when the dam went out and matters connected therewith. Hoff refused to tell him. The plaintiff regarded Hoff as hostile to his interests, but intended to subpoena him. Several months before the trial Hoff removed -from the county, and the plaintiff did not know until the preliminary statement of counsel at the trial that the defendants claimed that the dam did not go out until after five o’clock. The trial began November 2, and ended November 11, 1911. On November 5 the plaintiff learned that Hoff had a sister living at Viola, and was told by her that Hoff was living near Cherryvale; he was unable to pursue the inquiry until after the verdict had been rendered. Immediately thereafter the plaintiff went to Cherryvale, but was unable to find Hoff or his residence. “After great difficulty and diligent search” (no particulars of which are given) the plaintiff found Hoff in a small town six miles north of
The defendants filed affidavits tending to show that Hoff and his family connections were so well known in Goddard that an inquiry there would readily have disclosed his residence, and that Hoff had given a statement to the defendants shortly after the flood that is inconsistent with his present testimony. They also introduced oral evidence contradicting Hoff’s affidavit as to what took place on the day of the flood. Witnesses for the defendants also testified orally as to what had been known concerning Hoff’s residence.
The denial of the motion for a new trial means the final defeat of the plaintiff by the verdict of a jury who heard no evidence in his behalf upon a vital question in the case. The granting of the motion leaves the matter to be heard by a new jury in the light of all the evidence now procurable on both sides, and subjects the defendants only to the inconvenience of another trial, if their view of the facts is finally upheld. The court reaches the conclusion that sufficient diligence is shown to require the granting of the motion.
The jury found that the storm of May 31 was an extraordinary one, extending in its sweep over several townships. It is suggested that this finding compels a judgment for the defendants irrespective of when the dam went out. The use of the term “extraordinary” in characterizing the storm is not conclusive. The test (as the court properly instructed) is whether reasonable diligence required it to be anticipated and guarded against.
Complaint is made of an instruction to the effect that in building the dam the defendants were not bound to take into consideration conditions further down the stream. It seems clear that no actual prejudice resulted, but the language may have been so broad as to be subject to misapprehension. It is hard to see how conditions below the dam could affect the pressure
The judgment is reversed and a new trial ordered.
Dissenting Opinion
(dissenting) : I think the plaintiff had notice of the importance of Hoff’s testimony when Hoff refused to tell him what he knew as to when the dam went out. I am inclined to believe that a reasonably diligent inquiry would have revealed Hoff’s whereabouts before the trial. But at all events I think under the circumstances the plaintiff should have informed the court, before the case was submitted to the jury, of what he knew concerning Hoff, and should have asked time to produce him, especially when, on the third day after the trial was begun, and the sixth before it was ended, he saw and talked with Hoff’s sister as to his residence. In allowing the case to go to the jury without saying anything about this feature of the matter the plaintiff took his chance of winning with the evidence at hand. I think the trial court’s decision that due diligence was not shown should not be disturbed.-