118 Ark. 1 | Ark. | 1915
This is an action instituted by .appellee to recover damages resulting from alleged negligence of appellant in damming up a drainage ditch so as to cause water to overflow lands rented by appellee for the year 1912, ■ and to prevent 'the planting find cultivation of crops. There was .a drainage ditch 'known as the Wilson ditch which ran along the boundary of lands in question, but 'another drainage district was formed to enlarge .and extend that ditch, and the commissioners let the contract to appellant to do the work. It is alleged that in doing the work, the Wilson ditch was dammed up and kept in that condition for several months, land that as a result, the lands rented by appellee from Lovell were overflowed. This occurred in June, 1912, and it is claimed that the greater portion of the land was rendered wholly unfit for cultivation, and prevented the planting of" crops, and that a certain amount of crops of corn, which had been planted and were being cultivated to maturity, were destroyed. The court .submitted the case to the jury upon instructions concerning the measure of damages, which permitted the jury to assess damages based upon the rental value of the lands which could not be planted or cultivated on account of the alleged overflow, and upon the actual value of immature crops which were destroyed by the overflow. The jury returned a verdict in favor of appellee, and assessed the damages in the sum of $600..
It is true that the court gave two instructions, at the instance of appellee (instructions Nos. 1 and 6), which omitted any reference to negligence in the construction of the ditch, and made the right of appellee to recover depend solely on the damming up of the ditch and the consequent overflow of the land, but appellant failed to make ¡appropriate objections to those instructions. The objections were specific and based on other grounds. The court gave other instructions, at the request of both parties, submitting the question of negligence, and doubtless if the omission of that issue from the two instructions mentioned above had been called to the attention of the court, they would have been cured, but appellant contented itself with specific objections based upon entirely different grounds from that, and thereby waived the defect in the instructions.
There was objection to the instructions on the subject of the measure of damages, but we find that those instructions conform to the rules laid down by this court in other cases. St. Louis S. W. Ry. Co. v. Morris, 76 Ark. 542; St. Louis, I. M. & S. Ry. Co. v. Hoshall, 82 Ark. 387. The evidence was sufficient to justify the assessment made by the jury, when measured by those standards.
Affirmed.