184 Mich. 578 | Mich. | 1915
Plaintiff, for himself and as assignee of 23 others, recovered judgment against defendant in an action of trespass on the case for damages for negligently overflowing their lands and injuring and destroying crops growing thereon. Defendant has removed the case to this court by writ of error for review, and asks for a reversal on account of errors committed upon the trial of the case.
Defendant company owns and operates four or more
From May 27th to June 5th, with the exception of that which was discharged through the west unit which had been repaired, and was operating continuously, practically all of the water coming downstream was held back and had gradually accumulated in the 900-acre pond above the dam, so that at 4 a. m. June 5th the water was running over the crest of the dam 3.12 feet, when two of the Tainter gates, which had been raised 2 feet, were opened to 5 feet, and at 7 o’clock four of these gates, including the two just mentioned, were opened to 7 feet and remained open for six hours, which lowered the water in the pond 2 feet in five hours, and caused the tailrace to rise 7 feet higher than the normal flow of the river. Plaintiff’s land was dry at 7 a. m. of this day, and three hours later this sudden discharge of water into this channel caused the water to overflow the banks of the
The defendant and appellant, in presenting this case before this court, both on the original hearing and on the rehearing, has confined its argument to errors which were assigned upon certain portions of the charge of the court as given, upon the refusal of the court to give certain requests, and the refusal of the court to submit special questions to the jury.
We will first consider the errors defendant has assigned upon the charge of the court as given, and in doing so will give the entire charge of the court material to the issue, indicating the portions claimed to be erroneous in the order as marked alphabetically in the record, and bracketed by defendant.
“Charge of the Court.
“The defendant had a right to build its dam and impound the water in the St. Joseph river, and hold back such water in an artificial lake or pond (A)
“(B) [The plaintiff and his assignors had the right to cultivate their lands and plant whatever crops they pleased along the so-called river bottoms, subject to the risk of overflow and damage from the waters of the river flowing in a natural way, and no matter how much damage plaintiff and his assignors may have suffered by reason of the overflow of water from the St. Joseph river from and after the 4th day of June, 1909, he and neither of them can recover in this action if the water for any reason so flowing upon and over their lands was not more than would naturally and necessarily have been cast upon their lands if there had been no dam at the place shown by the evidence, located near Berrien Springs.]
“By permission obtained from Congress and the secretary of war and the supervisors of Berrien county the defendant was permitted to build the dam in question. Under this permission the defendant had the right to pond and discharge the waters of the river in a reasonable way; (C) [that is, the defendant has a right to the reasonable use of the dam and impounded water in the prosecution of its business and in such varying quantities as the volume of the stream and its own interests made reasonably necessary,, keeping in view the rights of lower riparian owners, that is, those who own lands below the dam; but such permission does not give the defendant company the right to wilfully and negligently operate the dam in such a manner that the lower property owners below the dam and along the river will be injured].
“In this case the plaintiff claims that on the 5th day of June, and for 10 days or 2 weeks thereafter the water in the St. Joseph river rose and flowed oyer its banks, and the water injured and destroyed his crops and the crops of the various persons who have assigned their claims to him. Those assignments were proper enough, and, having been made, the claims of the various parties (if they have any) can all be adjusted in this one suit.
“(D) [The plaintiff and his assignors were what
“(E) Now [negligence consists in the doing or omitting to do something which persons of ordinary prudence and care would not have done, or would not have omitted to do, under like or similar circumstances] .
“(F) [The plaintiff claims that at the time in question the defendant, by the dam before mentioned, had pooled or impounded the water in the St. Joseph river, preventing the natural flow of the river, until the fore bay or pond became full of water and was flowing over the crest of the dam; that the defendant then, without considering the rights of the landowners along the river below the dam, but wilfully and negligently, to serve some purpose of its own other than the reasonable use of such water, caused the gates of the dam to be opened so that a large volume and quantity of water was thereby suddenly discharging from such pond, and so greatly increased what would have been the natural flow of the river below the dam at that time, thereby flooding the lands of the plaintiff and his assignors, and that the lands of the plaintiff and his assignors would not have been so flooded and their crops injured and destroyed had the water been permitted to flow down the river uninterrupted and not interfered with by defendant and increased
“(G) [If you find that the defendant did wilfully and negligently operate its dam as claimed, and the crops of the plaintiff and his ■ assignors, or either of them, were injured as claimed, the defendant is liable to the plaintiff for all of the injury caused thereby to the crops of plaintiff and either or all of his assignors.]
“If, on the other hand, the jury find, as claimed by defendant, that at .the time complained of there was an unusual flood of water, and that by no act of the defendant was an unusual flood of water, and that by no act of the defendant was the natural flow of the water greatly increased in the river, as claimed by plaintiff, and that said defendant was in no wise negligent in the management of its dam at the time in question, the plaintiff cannot recover.
“I now instruct you as prayed by the defendant:
“ Tf the volume of water, naturally flowing, in the river without increase thereof by reason of any act of the defendant, overflowed the banks and inundated the property of the plaintiff and his assignors, then the defendant is not responsible in this suit.’ [Twenty-third. Given.]
“ ‘The case is founded upon a charge that the defendant was guilty of negligence in discharging water from its pond into the river and thereby flooding the lands of the plaintiff and his assignors, and there can be no verdict rendered against the defendant unless it was so negligent.’ [Twenty-fifth. Given.]
‘“Negligence is a disregard of duty. The plaintiff’s claim is that it was defendant’s duty to discharge the water from the pond in such a manner as not to greatly increase' the volume flowing in the river.’ [Twenty-sixth. Given.] The defendant had a right to discharge water from its pond faster than it flowed in, so as to reduce the elevation of the pond and facilitate the business of the defendant, and it would not be liable therefor.’ [Twentieth. Given, with the following modification.] Unless such water was negligently discharged and at a time and in a manner that a man of ordinary judgment and discretion would not have caused such water to be discharged, having in mind the rights of owners of land below such dam.
“If the jury find that the defendant is liable for injuries to the plaintiff and his assignors, or either of them, on account of the negligence of the defendant as explained, then you will proceed to determine the amount of damages sustained by the plaintiff and his assignors, or either of them.
“(H) [The measure of damages (if you find that the plaintiff or any of his assignors are entitled to damages in this case) will be the reasonable value of the crops injured or destroyed at the time the injury occurred. In determining the amount of damage so sustained, you will take into consideration all the facts and evidence of every kind produced before you by the plaintiff and by the defendant bearing upon the question of the amount of such damages that may have been sustained by the plaintiff and his assignors, or either of them, and as reasonable men determine the amount of damages so sustained by the plaintiff and his assignors, or either of them.]
“(I) [If yqu find that the plaintiff is entitled tp damages, you will determine the amount of damages sustained by the plaintiff individually, and each of the assignors who are entitled to damages, and report the separate damages sustained by each to the court, as well as the total amount of damages which you may find.]
“If the jury find that the defendant is not liable for any damages sustained by plaintiff or his assignors, or either of them, under the evidence and instructions of the court, your verdict will be not guilty.”
From defendant’s brief it appears that its principal objection to the charge of the court is that the court omitted to instruct the jury what acts and omissions on the part of the defendant would amount to negligence. In the 32 requests to charge which the defend
“First. It was the duty of the defendant to keep its water wheels in repair and in condition to fulfill its contracts, regardless of the state of the water, and if the wheels became out of order so as to threaten their efficiency, and in order to put them in repair it was necessary to lower the water in the pond, then defendant had the right to discharge sufficient water to SO' lower it.
“Second. If defendant, in operating its plant in the customary manner, found it necessary to lower the water in the pond, and to do so discharged a large volume of water into its tailrace, and in so doing had no intent to injure any person, then it is not liable in this case.”
“Ninth. Defendant was. under no obligation whatever to hold the water at a point at or above the crest of its dam; on the contrary, it had an absolute right to discharge sufficient water so as to maintain such constant head as was demanded by its operations, and it cannot be charged with negligence in so doing.
“Tenth. If an unusually large volume of water was coming into defendant’s pond, either because of a freshet, or because of a discharge from other ponds above, then the defendant had a right to allow such water to escape through its gates or wheels and to discharge sufficient of such water so as to maintain the head which it desired.”
“Fourteenth. The defendant had a right to operate its wheels during the high water, as well as during low water, and it had a right to discharge all such water through its waste gates as interfered with its operation, without incurring any liability thereby.”
From these requests to charge, and also from the briefs of its counsel and the oral argument upon rehearing, it appears that defendant’s case is planted largely upon the theory that the defendant is in fact
It was the duty of defendant, if not satisfied with the charge of the court in regard to what would constitute negligence on the part of defendant, to present a request in accordance with its views.
In our opinion the requests of defendant above quoted were properly refused by the court.
The exceptions taken by defendant to portions of the charge of the court as shown above, except as we have already stated, have not been separately presented and relied upon, so that it is necessary only for the court to consider such exceptions as are not covered by what has been said already.
Defendant’s assignment (E) refers to the definition of the word “negligence” given by the court which, taken by itself, would not be considered as correct, but when taken in connection with such definition included in defendant’s request No. 26, which was given by the court, the mistake is corrected, and whatever of error may appear must be considered as error without prejudice.
Another portion of the charge, assignment I, requires some attention. It refers to the instruction of the court as to how the jury should arrive at the amount of damages if plaintiff was entitled to recover. Plaintiff brought suit for himself and as assignee of 23 others whose lands were flooded. The testimony in the case tended to show individual losses of the assignors, as well as of plaintiff, and the total amount which he was entitled to recover, if anything, was made up of these separate items. We can see no possible prejudice arising from this. No claim is made that either the separate items or the gross amount were excessive. If any error can be said to have been committed, it was error without prejudice.
“(1) Was the defendant negligent in permitting the water to raise in its pond at any time prior to June 7, 1909?
“(2) Was it negligent in opening its gates or discharging water from its. pond prior to June 7, 1909?
"(3) Was it negligent in permitting the water to accumulate in its pond at any time prior to June 15th?
“ (4) Was the volume of water flowing in the river from June 5th to 12th sufficient, at all times, to overflow the banks of the river upon the lands in question?”
The court properly refused to submit any of these questions to the jury. The first three questions were not sufficiently specific, not being limited to. any length of time prior to the dates named in each of them, or any particular days; therefore there could be nothing conclusive in the answers to them. It follows that the defendant was not entitled of right to have them put. The fourth question was properly refused because there was nothing in the question to indicate what volume of water was referred to. If it was the natural flow of the stream, it required the consideration of facts which were not in evidence. There was no evidence of the natural flow of the water along the premises in question, nor of the elevation of the different parcels of land involved in the case, except as to plaintiff’s own premises.
By statute special questions to the jury are required to be specific, in single, short sentences. Section 10237, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12943).
"Special questions to ‘the jury are intended for the purpose of a finding upon some particular question of fact in dispute on the trial.” Van Auken v. Railway Co., 96 Mich. 307-314 (55 N. W. 971, 22 L. R. A. 33), and cases cited.
From an examination of the entire charge of the court as given, we are satisfied that the learned trial judge fairly and correctly submitted the case without prejudice to defendant. The record shows that plaintiff claimed that the flooding of his lands and those of his assignors was not caused by the sudden rising of the waters in the river, but by the negligent operation of this dam by defendant in negligently impounding and releasing large quantities of water while undertaking repairs to certain of the wheels; defendant’s claim and theory being that the high state of water was caused by heavy rains, and that in impounding and releasing water in large quantities while conducting repairs it was acting within its. rights, and if damages were caused to plaintiff and his assignors no liability attached. This was the principal dispute of fact in the case. Nearly all of the testimony on both sides bears upon the question. The court submitted all questions of fact to the jury in a charge which we have already said contained no. prejudicial error.
The errors assigned relative to the sufficiency of the declaration, the bill of particulars, and the assignments of claims made to plaintiff, and also to the refusal of the court to strike out all testimony on the part of the plaintiff as to the value of growing crops of corn on the premises flooded, have been examined, and we find no error was committed in overruling the objections of defendant as to these matters.
No prejudicial error appearing in the record, the. judgment of the circuit court is affirmed.