City of Boulder v. Fowler

• Decision Date: 01 June 1888
• Citation: 11 Colo. 396,18 P. 337
• Parties: CITY OF BOULDER v. FOWLER.
• Court: Colorado Supreme Court

18 P. 337

11 Colo. 396

CITY OF BOULDER v. FOWLER.

Supreme Court of Colorado

June 1, 1888

Commissioners' decision. Appeal from Boulder county court.

The appellant, the city of Boulder, a municipal corporation undertook to supply water for irrigation to such of its inhabitants as might desire the same for that purpose. To carry out this undertaking, it, in some measure, used the gutters at the sides of its streets as distributing ditches. The appellee, Mary C. Fowler, owned and occupied as a place of residence two lots in said city, fronting on one of these streets. The surface of her lots was lower than that of the street in front thereof, and, as the evidence tends to show the water, or some portions of it, escaped from the ditch in front of her premises, by percolation or seepage, and submerged her said lots, and continued so to do, with the knowledge of the officers and agents of said city, and without the use of proper care on its part to prevent the same, to the detriment of the appellee's property. This action was brought by her against the city to recover for the damages alleged to have been thus sustained, and resulted in a judgment in her favor for the sum of $183.33 1/3. The action was tried with a jury, and, after verdict, a motion was made by appellant for a new trial, but was overruled by the court.

O. F. A. Greene, for appellant.

Richard H. Whiteley, for appellee.

DE FRANCE, C., ( after stating the facts as above.)

The principal claim made by counsel for appellant, as may be inferred from the argument, is that the verdict is contrary to the evidence. But the verdict of a jury cannot be disturbed in cases like the present, where the evidence is conflicting, and the verdict is not clearly opposed to the weight of the testimony. Barker v. Hawley, 4 Colo. 316. The motion made for a new trial was properly overruled, and likewise the motion for a nonsuit.

The other errors assigned relate to the giving and refusing of instructions to the jury. The same proposition of law contained in the instruction refused was embraced in another instruction given, and there was therefore no error in the refusal. As a general rule, all the instructions in a case should be considered together, and in connection with each other, and with the testimony, in order to determine what errors, if any, there may be therein. Upon so considering the instructions given in this case, we find no error therein...