Carlson v. Stocking

• Decision Date: 26 November 1895
• Citation: 65 N.W. 58,91 Wis. 432
• Parties: CARLSON v. STOCKING ET AL.
• Court: Wisconsin Supreme Court

91 Wis. 432

65 N.W. 58

CARLSON

v.STOCKING ET AL.

Supreme Court of Wisconsin.

Nov. 26, 1895.

Appeal from superior court, Douglas county; Charles Smith, Judge.

Action by Charlotte Carlson against H. M. Stocking and another to recover damages for injury to plaintiff's property, resulting from defendants' negligence. From a judgment for defendants, plaintiff appeals. Reversed.

This action was brought in a justice's court to recover damages which the plaintiff alleged that she had sustained by the flooding of her lands on Middle river, in Douglas county, July 1, 1891, caused by defendants suddenly letting off the waters in great quantity from a dam about three miles above her premises, controlled and operated by them, whereby a great quantity of water which had been held back by the dam rushed down and overflowed her lands, and carried away a bridge she had built thereon across said river, and did damage in all to the amount of $200, for which she demanded judgment. The defendants denied the allegations of the complaint. A trial in justice's court resulted in a judgment in favor of the defendants, from which plaintiff appealed to the superior court. In that court, upon notice and motion, the plaintiff obtained an order, the defendants not appearing, allowing her to file an amended complaint, and accordingly she filed an amended complaint, in two counts or causes of action; the first, in substance, the same as her original complaint, laying the time of the injury August 1, instead of July 1, 1891, and charging that the waters so discharged from said dam, in addition to washing away and destroying her said bridge, washed and carried away an acre of her land, the garden, and garden vegetables, and a number of fruit trees, and overflowed and damaged her meadow land of about four acres on and along said river; the second cause of action was for similar injuries caused by the defendants in the same manner between May 1, 1892, and October 1 of that year,--all to her damage of $1,000. No new answer was interposed, but when the cause came for trial, and after the jury had been sworn, the defendants moved the court to strike out the second count or cause of action so added by way of amendment, and the court granted the motion, and the trial proceeded upon the first cause of action. After the plaintiff had rested her case, the defendants moved that the plaintiff be nonsuited, and the court granted the motion, and gave judgment against the plaintiff for costs, from which she appealed.Crownhart, Owen & Foley, for appellant.

Murphy & Bundy, for respondents.

CASSODAY, C. J. (after stating the facts).

It is, in effect, conceded that the plaintiff's premises were injured, and that she was damaged, as alleged, about August 1, 1891, and that such damage was caused, in part at least, by opening the dam mentioned, for the purpose of creating a flood to drive a large quantity of logs, belonging in part to one Frazier, in part to the defendants, and in part to other parties. There is evidence tending to prove, not only that the defendants participated in raising the dam in the summer of 1891, and a short time before the flooding mentioned, but also in operating the same, and making the drive at the time in question. If Frazier was the mere agent of the defendants in...