Falkenstern v. Town of Greenfield

145 Wis. 232 | Wis. | 1911

Lead Opinion

MaRshalu, J.

Whether tbe trial court was warranted in directing a verdict in favor of respondent upon tbe ground tbat tbe evidence conclusively showed negligent maintenance by appellant of tbe dam to have efficiently contributed to produce tbe injury complained of, in tbat it resulted in tbe natural bed of tbe creek between tbe dam and tbe bridge being filled up by debris cast there upon occasions of tbe dam being washed out, and tbat such filling obstructed tbe flow of water to and through tbe openings under tbe bridge, materially adding to tbe danger of water overflowing tbe creek banks above tbe bridge and reaching appellant’s improvements with damaging effect, does not appear very satisfactorily. It is doubtful, at least, whether tbe judgment could be sustained upon tbe precise ground tbe trial court rested it, but there is a much broader one in favor of respondent which seems to be insurmountable.

Tbe claim of appellant tbat the natural flow of tbe stream below tbe dam, augmented by water which came into tbe creek from tbe few acres of surface on tbe right bank, was so obstructed at tbe bridge as to overflow tbe creek bank on tbe left .side in sucb quantity as to form a deep powerful torrent reaching to and engulfing tbe bam and granary, located as indicated in tbe statement, overturning tbe latter and causing tbe former to collapse and float away, — ds too incredible for belief.

Tbe story told by appellant tbat tbe occurrence to tbe bam *238took place long before the dam went out taxes our credulity at least to the limit. There is a boundary beyond which a witness cannot go and have his evidence entitled to any weight in determining the truth as to a controverted question of fact. It is a mistake to think everything which a witness may say under oath, however preposterous, is proof. The story of a witness on the stand, uncontradicted by any instrument or statement from the mouth of any other witness, may, in the light of physical situations and matters of common knowledge, convict him of at least being conclusively mistaken. In suggesting this we do not intend to go so far as to decide that the appellant in this case told a false story as to the time when the barn floated off with reference to when the dam went out. For the purpose of the case, it may be assumed that the story, however incredible, is a true one and the result would be the same as we view the record.

The laws of nature cannot he turned aside by the story of any witness or number of them. Water will flow down hill and in all such directions till it comes to a level, and a few inches of disturbance of the level within such distances as are material to this case, that is from point to point in the territory bounded by the creek, the dam, the mill flume and race, and the highway; will inevitably, in case of the volume being large, cause a rapid, forceful flow. The lay of the ground was such that before water in the downward course on the left side of the creek was sufficient to reach and do the damage to the buildings complained of, it must have been several feet deep and in a stream reaching from the bank of the creek toward the flume over 100 feet and below the mill, covering practically the whole width between the creek and the tail-race, a distance of nearly 200 feet. It cannot be that water flowing into the creek just above the bridge formed any material part of such a great body. It must have come from above the dam, primarily; territory hundreds of times greater in area than that served by the inflow to the creek between the dam and the bridge.

*239Tbe evidence from tbe mouths of witnesses is that tbe rain storm was not extraordinary, yet, by undisputed evidence, for tbe four years tbe bridge bad been maintained, as at tbe time of tbe occurrence in question, it bad not caused any injury to appellant’s property. That there were some bard storms in tbe meantime tbe evidence amply shows. Therefore, assuming that tbe witnesses were correct in saying that there was nothing extraordinary about tbe storm in question, certainly some other extraordinary occurrence must have taken place to have caused such an immense body of water to come- from tbe territory above tbe line of tbe dam as was flowing down tbe valley outside tbe banks of tbe creek at tbe time tbe barn floated off. Such an occurrence is not consistent with tbe direct evidence, except that appellant took off tbe splash boards from bis dam before tbe barn moved off. Of course, in view of tbe size of tbe flowage above tbe dam and tbe storm, tbe removal of tbe splash boards must have greatly augmented tbe natural freshet flow of tbe stream; and yet it is bard to believe it could have done so sufficiently to have produced such a deep, broad stream as that mentioned.

Tbe only complaint about tbe bridge is that tbe openings were decreased in capacity by a narrowing of about one third. As tbe opening practically was unobstructed the morning after tbe dam went out, it must have been so during tbe night in question. There was nothing in tbe changed characteristics -of the bridge, from tbe time when it was confessed that it did not obstruct tbe stream, to account for tbe great flood passing down tbe highway, except narrowing of tbe opening about six feet. That such narrowing could not have caused tbe flood is plain beyond room for reasonable controversy. If such narrowing bad caused water to pass down on tbe left bank across tbe highway it could not have been sufficient, under tbe circumstances, to create a stream of any great depth. If tbe whole opening in tbe bridge, as it formerly existed, bad been ■closed up so as to compel tbe entire ordinary freshet flow of tbe stream to pass down tbe valley on the left bank, tbe spread *240would bave been so great that no such broad, deep flow would have occurred as must have existed at the time the barn collapsed and floated off and the granary toppled over.

So irrespective of whether the filling up of the channel below the dam by debris from the dam previous to the occurrence in question, proximately, to any extent, caused the damages complained of, it is very plain that the jury would not have been warranted in finding from the evidence to a reasonable certainty that the change in the bridge had anything, substantial to do with the matter.

By the Court. — Judgment affirmed.





Concurrence Opinion

TimxiN, J.

I concur in the result but not in all that is said in the opinion. I have not that confidence in my knowledge of physical situations as established by oral evidence nor in my grasp of “matters of common knowledge” which would enable me to thereby impeach and discredit a witness. I may be pardoned for doubting whether others have such power.

Testimony which is demonstrably false may no doubt be rejected, as if one should testify that the square root of 64 was 9, or that the sum of the interior angles of a triangle was greater than two right angles. Testimony might also in some cases be rejected which was so much in conflict with known natural laws that the act or event testified to would be a miracle. But not every one would agree with this last proposition. In every case, however, where the physical situation is itself derived or imagined from oral narrative, even if the latter be uncontroverted, and in all that vast number of instances where common knowledge may possibly be only common error, there should be no such rule for weighing testimony.