Belnap v. Widdison

• Decision Date: 09 May 1907
• Docket Number: 1821
• Citation: 32 Utah 246,90 P. 393
• Court: Utah Supreme Court
• Parties: BELNAP v. WIDDISON et al

90 P. 393

32 Utah 246

BELNAP v. WIDDISON et al

No. 1821

Supreme Court of Utah

May 9, 1907

APPEAL from District Court, Second District; before Justice J. A Howell.

Action by Sarah Jane Belnap against James G. Widdison and others. From a judgment for defendants, plaintiff appeals.

REVERSED.

C. C Richards and A. E. Pratt for appellant.

APPELLANT'S POINTS.

But there is no ground for presuming acquiescence in statements unless they are of such character as would naturally call for a response, and unless the party sought to be charged was in such a situation that he probably would have replied to them, if untrue. (Barry v. Davis, 33 Mich. 515; Churchill v. Fulliam, 8 Iowa 45; Gibney v. Marchay, 34 N.Y. 301; Slattery v. People, 76 Ill. 217; Whitney v. Houghton, 127 Mass. 527.)

Generally the cases in which the party is held to be affected by his silence are where statements are made concerning his own actions or liabilities. (Gibney v. Marchay, 34 N.Y. 301.)

Such statements when made by a stranger should be received and applied with caution. (Whitney v. Houghton, 127 Mass. 527.)

They could not say to the plaintiff that they had a right to continue to use the headgate in its defective condition because the Hooper Canal Company, their agent, had failed or refused to repair it. (Thompson on Neg., sec. 75; Farnham on Waters, 1598, 1984; Lisonbee v. Irrigation Co., 18 Utah 348; Thompson on Neg., sec. 7435; Durfee v. Garvey, [Cal.], 21 P. 302; South Bend Mfg. Co. v. Liphart [Ind.], 39 N.E. 908; Hocutt v. Railroad, 32 S.E. 681; Richardson v. Kier, 34 Cal. 63; 37 Cal. 263; Chidester v. Consolidated Ditch Co., 59 Cal. 197; Lapham v. Curtis, 5 Vt. 371, 26 Am. Dec. 310.)

Instructions should be predicated upon the pleadings and evidence in the case. An instruction which is merely a statement of an abstract principle of law, but has no application to the evidence in the case, should be refused. The reason for the rule is that instructions not applicable to the case, although abstractly correct, are apt to mislead the jury and cause them to believe that there is some evidence tending to prove the facts referred to in the instructions, when, as a matter of fact, there is none. The giving of such an instruction is erroneous. (Sargent v. Linden Min. Co., 55 Cal. 204; Blashfield on Instructions, sec. 83, pp. 182, 201; Lacy v. Wilson, 24 Mich. 479; Comstock v. Norton, 36 Mich. 278; Le Masters v. So. P. Co., 131 Cal. 105.)

H. H. Henderson for respondents.

RESPONDENT'S POINTS.

The objection being general, this court will not consider the same unless it was incompetent, irrelevant and immaterial for every purpose. (Olsen v. Railroad, 24 Utah 460; Snouden v. Coal Co., 16 Utah 372; Culmer v. Clift, 14 Utah 291; Leedom v. Furn. Co., 12 Utah 174; In Re Van Alstine, 26 Utah 205.)

This court has found it to be error when the nisi prius court was instructing a jury where the words "reasonable degree of care" are used, not to define the same. (Dickert v. Railroad, 20 Utah 394; Downey v. Mining Co., 24 Utah 431; People v. Kerm, 8 Utah 268; People v. Biddlecome, 3 Utah 308; Bragger v. Railroad, 24 Utah 391.)

This court has laid down the rule time and time again that the entire charge must be considered together, each part as qualified by other parts, and if when so considered it is substantially correct, it is sufficient. (Olsen v. Railroad, 24 Utah 460; Anderson v. Mining Co., 16 Utah 28; Major v. Railroad, 21 Utah 21; State v. MecCoy, 15 Utah 141; People v. Chadwick, 7 Utah 141; People v. Olsen, 4 Utah 413.)

McCARTY, C. J. STRAUP and FRICK, JJ., concur.

OPINION

McCARTY, C. J.

Plaintiff alleges in her complaint that she is now, and ever since the 10th day of October, 1894, has been, the owner of nineteen acres of farming land situate in Weber county, Utah; that defendants now are, and ever since a date long prior to May 20, 1903, have been, the owners of a certain irrigation ditch running along the north line of plaintiff's land through which they convey water from a certain canal to their respective farms; that about May 20, 1903, defendants, having turned the water from said canal into said ditch, negligently permitted the same to overflow the banks of said ditch down to and upon the east half of plaintiff's land, thereby flooding out and destroying the crops growing thereon; that said overflow of water flooded and soaked a large portion of said land causing the mineral to rise to the surface thereof, and thereby making the land unfit for agricultural purposes, to plaintiff's damage in the sum of $ 225. For a second cause of action plaintiff alleges that defendants in 1904 again negligently permitted the water in said ditch to overflow onto said land, thereby damaging the land and destroying the crops growing thereon, to plaintiff's damage in the sum of $ 675. The defendants answered and a trial was had to a jury who returned a verdict in favor of defendants, "No cause of action." From the judgment entered on the verdict, plaintiff prosecutes this appeal.

The uncontradicted evidence shows that in the year 1903, and again in 1904, water from defendant's ditch overflowed and covered about nine acres of plaintiff's land, upon which was growing a crop of alfalfa; that the flooding of the land caused the mineral to rise to the surface, which killed and destroyed practically all of the alfalfa growing thereon. Defendants' ditch, which is known as the "Widdison ditch," extends from the Hooper canal along the north boundary line of the land so overflowed. The evidence introduced by plaintiff also tended to show that the overflow of water from defendants' ditch onto plaintiff's land was caused by the failure of defendants to properly clean out their ditch, and keep it in reasonably safe condition. And the evidence of both plaintiff and defendants shows that the overflow in the year 1904 was caused, partly at least, by two artificial dams which had been placed in the ditch, one of which was near the eastern boundary and the other near the western boundary line of plaintiff's land. This ditch was supplied with water from the Hooper canal and through a headgate which was under the exclusive control of the Hooper Canal Company. The evidence also shows that the headgate was poorly constructed, out of repair, and not in a condition for the proper regulation and distribution of the water to the defendants through their ditch. The defendants introduced evidence tending to show that the overflow of water from their ditch onto plaintiff's land was caused by the partial washing out of this headgate, which, as they claim, they had no right to regulate or in any wise interfere with, thereby permitting more water to flow into the ditch than it had capacity to carry.

The court among other things instructed the jury as follows "The court charges you that it was incumbent upon the plaintiff, or her duly authorized agents, if they saw plaintiff's land being overflowed by water, or had knowledge that her land was being overflowed by water to use ordinary and reasonable care to drain off said water, if possible, and remove any obstructions there might be in defendants' ditch which would cause the said water to overflow--that is to say that the plaintiff cannot sit passively by and see her property injured or damaged without attempting to use ordinary and reasonable care to stop or remove the thing that was causing her injury, if it was in her power, or within the power of her duly authorized agents, to do the same--but in determining this question--that is, as to whether or not the plaintiff was guilty of contributory negligence--you must determine it simply upon the evidence introduced by the plaintiff, the defendants not having set up contributory negligence as a defense." Plaintiff excepted to the part of the instruction which we have italicized, and now assigns the giving of it as error. It is contended, and we think there is merit in the contention, that there is no evidence in the record upon which an instruction of this kind can be...