Boulger v. N. Pac. Ry.

• Decision Date: 16 November 1918
• Citation: 171 N.W. 632,41 N.D. 316
• Parties: BOULGER et al. v. NORTHERN PAC. RY.
• Court: North Dakota Supreme Court

41 N.D. 316

171 N.W. 632

BOULGER et al.

v.NORTHERN PAC. RY.

Supreme Court of North Dakota.

Nov. 16, 1918.

Syllabus by the Court.

The failure of a special verdict to find upon any material fact in issue is equivalent to a finding against the party upon whom the burden rests to establish such fact, and this whether the party be the plaintiff or the defendant.

Where it appears that part of the damage in a tort action was caused by a third party or a third cause, the plaintiff, unless a conspiracy or a joint tort can be proved, can only recover against the defendant such damages as he can show were occasioned by defendant's wrong.

Where the special verdict of a jury finds that the injury to plaintiff's property, which was flooded by surface waters, was, if due at all, to the obstructing of such waters by the defendant's railroad embankment and the flooding back therefrom, and was also due to the waters rushing down hill and running into the basements before they even reached such track, and does not determine how much damage was occasioned by each of the causes, no recovery against the defendant can be had on such a verdict.

Special verdicts of the jury examined, and found not to be inconsistent.

Where a special verdict is submitted to the jury, which covers all of the material issues of the case, and such findings are in favor of the defendant, such defendant is entitled to the reception of the same and a judgment thereon, and an order overruling a motion for such judgment and followed by an order for a new trial is an appealable order and comes within the provisions of section 7841 of the Compiled Laws of 1913, which makes orders appealable which effect a substantial right, when such order in effect determines the cause and prevents a judgment from which an appeal might be taken.

Additional Syllabus by Editorial Staff.

Positive findings as to material facts which are conclusive of the controversy overcome those which are merely incidental.

Appeal from District Court, Stark County; W. C. Crawford, Judge.

Action by John V. Boulger and another against the Northern Pacific Railway, with separate actions by Thomas E. Vallancy, Harriet Weir, and August Ziesmer against the same defendant. Defendant's motions for judgments on special verdicts denied, and new trials ordered, and defendant in each case appeals. Orders reversed, and causes remanded, with directions to enter judgment for the defendant dismissing the several complaints.

These are actions for damages occasioned by the flooding of the plaintiffs' premises by water alleged to have been obstructed by the defendant's railroad embankment, and during the same storm as that which was considered in the cases of Soules v. Northern Pacific Railway Co., 34 N. D. 7, 157 N. W. 823, L. R. A. 1917A, 501, and Reichert v. Northern Pacific Railway Co., 167 N. W. 127.

Special verdicts were requested, and the following questions were propounded and answered:

“We, the jury impaneled and sworn to try the above-entitled action, do make the following answers to the questions submitted to us:

(1) Q. Does the railroad embankment cross a natural channel for drainage of surface waters where the railroad culvert is constructed?

(1) A. It does.

(2) Q. Was the four-foot culvert maintained by the defendant, if not obstructed by any floating street culvert crossing or other débris, of sufficient size and capacity to take care of storm waters which might reasonably be expected in this locality?

(2) A. (Not answered.)

(3) Q. If you answer question No. 2 ‘No,’ should an ordinarily prudent man in the exercise of ordinary and usual care have known that said culvert was not sufficient in size or capacity?

(3) A. No.

(4) Q. Would an ordinarily prudent person

under similar circumstances have installed the four-foot culvert in question here?

(4) A. Yes.

(5) Q. Did the defendant employ competent engineers to determine the size of a culvert necessary to take care of the run off from the drainage basin in question here and make installation of such culvert?

(5) A. No.

(6) Q. Is it just as probable that the flooding of the Masonic Temple basement and the damage to plaintiff's property was occasioned by causes other than the negligence of the defendant railway company, if you find said railway company was negligent?

(6) A. No.

(7) Q. Was the four-foot culvert maintained by the defendant, if obstructed by any floating street platform or other débris, of sufficient size and capacity to take care of all the rain that fell on July 28, 1914, up to 6:30 o'clock on the morning of that day?

(7) A. No.

(8) Q. Was the running off of the waters through the culvert under the track obstructed and blocked by the street culvert crossing and other débris referred to in the testimony, thus causing the waters to back up and flood plaintiffs' premises?

(8) A. (Not answered.)

(9) Q. Was the storm and flood of July 28, 1914, an unusual and extraordinary one?

(9) A. Yes.

(10) Q. Was the storm of July 28, 1914, such a storm that might reasonably be expected to occur in this vicinity?

(10) A. Yes.

(11) Q. Should the ordinary prudent man residing in this region have anticipated from his general experience such a storm and rainfall as occurred on July 28, 1914?

(11) A. Yes.

(12) Q. Did plaintiffs sustain damages because of the flooding of their premises on July 28, 1914?

(12) A. Yes.

(13) Q. If they did sustain damages, what was the amount of that damage?

(13) A. Vallancy, $700; Weir, $1,400; Boulger & Hughes, $2,300; Ziesmer, $600.

(14) Q. Did the water coming down either Sims street or First Street North, from the west, flow over the sidewalk and into the basement of the building occupied by Boulger & Hughes, thus damaging plaintiffs' property?

(14) A. Yes.

(15) Q. Did any water other than that backed up from the railway culvert run into the basement of the Masonic Temple, thus damaging plaintiffs' property?

(15) A. Yes.

(16) Q. Did water run into the basement of the Masonic Temple before the railway culvert under the tracks was running full?

(16) A. Yes.

(17) Q. If you answer question No. 16 in the affirmative, about how much water had run in?

(17) A. Do not know.”

Motions for judgment on the special verdicts were made by both the plaintiffs and the defendant, but were denied, and the court on its own motion ordered new trials.

The defendant appeals from the orders denying its motions for judgment on the verdicts.

Watson, Young & Conmy, of Fargo, for appellant.

T. F. Murtha and Thomas Pugh, both of Dickinson, for respondents.

BRUCE, C. J. (after stating the facts as above).

Though these are actions for damages occasioned by the same flood which was involved in the prior cases of Soules v. Northern Pacific Railway Co., 34 N. D. 7, 157 N. W. 823, L. R. A. 1917A, 501, and Reichert v. Northern Pacific Railway Co., 167 N. W. 127, the buildings which are here claimed to have been flooded were situated at a greater distance from and at a higher elevation than those which were therein injured, and it may well have been that the waters flowing back from the railway culvert or embankment would have flooded the buildings on this lower area while not those in the cases which are before us.

The cases, however, must be decided upon the law as announced in the prior case of Reichert v. Northern Pacific Raliway Co., 167 N. W. 127. According to that case, the material questions to be decided are: Was the waterway or drainway the natural and accustomed channel for the escape of surface waters, and did the railway company so obstruct the same that after such obstruction it was unable to carry off waters which it would have formerly carried, and did such obstruction occasion injury to the plaintiffs?

[1] The rule seems to be well established that “the failure of a special verdict to find upon any material fact in issue is equivalent to a finding against the party upon whom the burden rests to establish such fact.” We do not, however, construe this rule as the defendant evidently construed it, and that is that such failure will in all cases be construed against the plaintiff, who has, of course, the general burden of proof in all actions of negligence, but rather as against the party, whether plaintiff or defendant, upon whom the particular burden rests to establish the particular fact, and whether such fact is necessary to the plaintiffs' case or necessary merely to the defense of the defendant. See Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327, 27 N. E. 741;Wabash Ry. Co. v. Ray, 152 Ind. 392, 51 N. E. 920;Cleveland Ry. Co. v. Miller, 149 Ind. 490, 49 N. E. 445;Atchison, T. & S. F. Ry. Co. v. McCandliss, 33 Kan. 366, 6 Pac. 587;Croan v. Baden, 73 Kan. 364, 85 Pac. 532;Mulvaney v. Burroughs, 152 Iowa, 439, 132 N. W. 873;Dougherty v. Snyder, 97 Mo. App. 495, 71 S. W. 463; A., T. & S. F. Ry. Co. v. Johnson, 3 Okl. 41, 41 Pac. 641;Hayes v. Smith, 15 Ohio Cir. Ct. R. 300;State v. Jackson, 52 Ind. App. 254, 100 N. E. 479;Reeves v. C., M. & St. P. Ry. Co., 24 S. D. 84, 123 N. W. 498;Flannery v. Railway Co., 23 Mo. App. 120;Allen v. Lizer, 9 Kan. App. 548, 58 Pac. 238.

[2] Under this rule the special verdict found that the railroad embankment crossed a natural channel for the drainage of surface waters; that the four-foot culvert maintained by the defendant, if unobstructed by any floating street platform or other débris, was not of sufficient size and capacity to take care of all of the rain that fell on July 28, 1914, up to 6:30 o'clock on that day; that the running off of the water of the culvert under the track was not obstructed or blocked by the street culvert crossing...