39 Ill. App. 409 | Ill. App. Ct. | 1891
This suit was brought to recover damages resulting from the maintaining of an embankment obstructing the natural flow of water and forcing it back and over the land of appellee, destroying his crops growing thereon. The jury found appellant guilty of the negligence charged, and assessed the damages at §700, for which amount judgment was entered. Two grounds for reversal are suggested. First, it is insisted the solid embankment maintained by appellant was not the proximate cause of the overflow complained of, but that it was caused by an extraordinary flood; second, that it was error in the court below to receive and enter the general verdict without requiring the jury to return a finding upon the following interrogatory submitted to them by the court at the request of appellant: “Was the plaintiff’s damage 'which is complained of, the direct result of an extraordinary rainfall of June 16, 1888?” The evidence upon the question of the character of the rain-fall at that date was conflicting, several witnesses testifying there had been as heavy rains in that locality in prior years. The jury had sufficient evidence to justify the finding that the embankment, and not an extraordinary flood, caused the water to back up and overflow the crops of plaintiff; hence, the first point suggested is not sustained by the record. The interrogatory presented for a finding an evidentiary and not an ultimate fact. The jury by answering this interrogatory in the affirmative, would not necessarily thereby have returned a special finding in conflict with their general verdict, nor a finding concluding the plaintiff and defeating his right to recover. It might be conceded an extraordinary rain-fall of June 16, 1888, directly damaged plaintiff by overflowing and destroying his crops, and yet but for the negligence of appellant in maintaining a solid embankment unprovided with suitable and proper outlets or culverts, for the passage of the water in its natural course when heavy rains occurred, the water on June 16th might have flowed off and not have backed up and overflowed plaintiff’s crops. The evidence established the fact that the embankment was a -solid structure, without an opening, and absolutely dammed the water and prevented it from flowing off in its natural course, as it did before the obstruction was erected. The interrogatory did not submit a question to the jury that was controlling and it was not error to enter the general verdict without requiring the jury to return a special finding. C. & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132. The evidence justified the verdict. The jury were fully and very favorably instructed for appellant and no reason appears why the judgment should be reversed. It is therefore affirmed.
Judgment affirmed.
