Barlow v. North Sterling Irr. Dist.

• Decision Date: 22 April 1929
• Docket Number: 12077.
• Citation: 85 Colo. 488,277 P. 469
• Parties: BARLOW v. NORTH STERLING IRR. DIST.
• Court: Colorado Supreme Court

277 P. 469

85 Colo. 488

BARLOW v. NORTH STERLING IRR. DIST.

No. 12077.

Supreme Court of Colorado

April 22, 1929

Department 2.

Error to District Court, Logan County; H. E. Munson, Judge.

Action by George W. Barlow against the North Sterling Irrigation District, a municipal corporation. Judgment for defendant and plaintiff brings error.

Reversed.

Coen & Sauter, of Sterling, for plaintiff in error.

Munson & Jones, of Sterling, for defendant in error.

BUTLER J.

George W. Barlow sued the North Sterling irrigation district for damages sustained by him by reason of the flooding of his land, caused, he alleges, by negligence on the part of the defendant. Judgment was for the defendant. The plaintiff seeks a reversal of the judgment.

During a violent rainstorm the defendant's irrigation ditch broke, and the water therefrom flowed over the plaintiff's land, causing damage. The defendant claimed that the damage was caused solely by the act of God, whereas the plaintiff claimed that the defendant was negligent, and that its negligence either alone or in co-operation with the act of God, caused the damage. There was evidence sufficient to support a verdict for either the plaintiff or the defendant; therefore the verdict and judgment for the defendant must stand, provided there was no error in instructing the jury.

1. The parties do not differ as to the law applicable to the facts. They agree--and it is the law--that to constitute a defense, the act of God must be the sole cause of the damage, and that if negligence of the defendant 'contributed to or co-operated with' the act of God in causing the damage, the defendant is liable. Ryan Gulch Reservoir Co. v. Swartz, 83 Colo. 225, 263 P. 728; The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039; Salton Sea Cases, 172 F. 792, 97 C.C.A. 214. Was this legal principle called to the attention of the jury? Counsel for the plaintiff say it was not, and we agree with them.

The court's instruction dealing with the act of God as a defense is instruction No. 5. The plaintiff objected to paragraph 3 of that instruction. It reads as follows:

'And in this connection, if you find that the storm which occurred on the 10th day of August, 1926, was of such severity that human agency could not foresee and would not expect, and that by reason of such unprecedented character of said storm the damage complained of occurred in this case, then and in that case the defendant is not responsible and not chargeable, and your verdict should be for the defendant.'

The instruction does not correctly state the law. It should have been qualified by the insertion of the word 'solely,' or a word of similar import, between the words 'that' and 'by,' so as to read, 'that solely by reason of such unprecedented character of said storm the damage complained of occurred in this case'; or in some other manner the instruction should have made it plain that to relieve the defendant...