Andrews v. Chi., R. I. & P. Ry. Co.

• Decision Date: 10 April 1911
• Citation: 151 Iowa 166,130 N.W. 918
• Court: Iowa Supreme Court
• Parties: ANDREWS v. CHICAGO, R. I. & P. RY. CO.

151 Iowa 166

130 N.W. 918

ANDREWS

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

April 10, 1911.

Appeal from District Court, Cass County; A. B. Thornell, Judge.

Action for damages to crops resulting from a flood. The claim of the plaintiff was that the flood was caused by the diversion of water by the act of the defendant company. Such alleged act consisted in cutting the banks of one ditch, and thereby diverting the water from one culvert to another. There was a trial to a jury, and a verdict for the defendant. Upon motion of the plaintiff, a new trial was granted, and the defendant appeals. Affirmed.Carroll Wright, J. L. Parrish, and J. B. Rockafellow, for appellant.

H. F. Andrews and E. E. Willard, for appellee.

EVANS, J.

Appellant urges that the new trial should not have been granted, because no proper ground therefor was shown. It is urged that the evidence supported the verdict and that the record was free from error.

The principal grounds urged in support of the ruling of the trial court are that the verdict was against the weight of the evidence and that the trial court erred in instruction No. 9. We have repeatedly announced our reluctance to interfere with the discretion vested in the trial court in the granting of a new trial. The trial court did not announce the ground upon which the new trial was granted. The grounds upon which such order may be supported are not very prominent in this record. As to the weight of the evidence, we could readily have supported a ruling of the court sustaining the verdict in this respect. The burden was upon the plaintiff, and the evidence in his behalf is not so persuasive as to fairly impeach the verdict upon that ground alone.

We find, however, that in instruction No. 9 the trial court inadvertently used the word “plaintiff” in lieu of the word “defendant.” The effect of the instruction in this form was to assume that the plaintiff had cut a certain bank, whereas the claim of the plaintiff was that the defendant had cut such bank. That the use of the word “plaintiff” in such a connection was a mere oversight would be manifest to a person of experience. Whether it might not have been to some extent misleading to a jury is not so clear. The instruction under consideration dealt with the question of proximate cause. The jury could not have got a proper understanding of such question from such instruction as written. It could do so only by discovering the error and recognizing it as...