Fred v. Perkins v. Vermont Hydro-Electric Corporation

• Citation: 177 A. 631,106 Vt. 367
• Parties: FRED V. PERKINS v. VERMONT HYDRO-ELECTRIC CORPORATION
• Decision Date: 02 October 1934
• Court: United States State Supreme Court of Vermont

177 A. 631

106 Vt. 367

FRED V. PERKINS v. VERMONT HYDRO-ELECTRIC CORPORATION

Supreme Court of Vermont

October 2, 1934

October Term, 1933.

Negligence---"Act of God"---Waters and Water Courses---Rule Where Negligence Combined with Unprecedented Flood To Cause Damage---Proximate Cause---Anticipated Consequences on Liability for Negligence---Extent of Liability for Negligence---Improper Construction of Diversion System so as To Be Insufficient in Times of Usual or Known High Water as Negligence---View of Evidence on Defendant's Motion for Directed Verdict---Jury Questions---Effect of Ruling of Court Withdrawing from Jury Issue of Negligence in Construction and Maintenance of Flashboards on Use of Evidence Relating to Flashboards as Bearing on other Issues---Sufficiency of Evidence To Make Jury Question as to Negligence by Reason of Constructing and Maintaining Dike of Insufficient Height if Flashboards Were Used---Sufficiency of Evidence To Make Jury Question as to Whether Discharge of Flood Water at Certain Place Was Result of Erosion caused by Negligent Construction of Conduit---What May and May Not Be Considered on Defendant's Motion for Directed Verdict---Verdict May Not Be Based on Surmise and Conjecture---Sufficiency of Evidence as to Negligence in Construction of Diversion System Cooperating with Act of God To Cause Damage---Trial---Exception To Refusal To Grant Requested Instruction by Reference to Number Only---No Error Where Substance of Requested Instruction Given---Instructions of Court to Jury---Non-liability of Power Company for Negligently Constructing Conduit, if Unprecedented Flood Created Such Overwhelming Force as Would Have Caused Damage Occasioned Regardless of Such Negligence---That Injury Occurred During Unprecedented Flood as Not Necessarily Justifying Instruction That by Reason of That Fact Negligent Power Company Was Not Liable---Refusal To Instruct That if Particular Ground of Negligence Did Not Exist, Power Company Was Not Liable as without Error, Where Other Issues of Negligence Would Thereby Be Disregarded---Evidence---Witnesses---Sufficiency of Evidence To Justify Cross-Examination Assuming Flashboards To Have Been Certain Height on Particular Day---Discretion of Scope and Extent of Cross-Examination---Order of Reception of Evidence---Presumption That Rulings Subject of Discretion Were so Made---Harmless Error---Hypothetical Questions---Sufficiency of Evidence To Warrant Assumptions Stated in Such Questions---Evidence Rendered Admissible by Theory of Case---Expert Testimony Based upon Assumption of Facts Not in Evidence as Harmless, When Testimony Tended To Support Excepting Party's Claim---Sufficiency of Evidence To Support Assumptions in Hypothetical Questions---Argument of Counsel---Similarity of Question Involved in Motion To Set Aside Verdict as Unsupported by Evidence and Motion for Directed Verdict---"Law of the Case".

1. Where damages suffered are due directly and exclusively to natural causes, without human intervention, which could not have been prevented by any amount of foresight, pains, and care reasonably to be expected, there is no liability because it is an "act of God," but rule is otherwise if negligence of one sought to be charged mingles with operation of natural causes so as to be active and cooperating causes of damage.

2. In

ACTION OF TORT against power company for negligence in construction of conduit to divert water of brook, and in construction of an inadequate dike along side of its pond in river, resulting in damage to plaintiff's real and personal property occasioned at time of extraordinary flood, if injury, which flood occasioned might have been avoided or prevented by human prudence, foresight, pains, and care reasonably to be expected from defendant, latter is liable.

3. In such action, if act of God was so overwhelming as of its own force to produce injury independently of negligence of defendant, latter cannot be held responsible.

4. Except where there are joint tort-feasors, tort cannot be considered legal cause of damage if such damage would have occurred had tort never been committed, rule being that in order to justify recovery negligence must form what is usually called proximate cause, but which may more accurately be termed efficient and producing cause of injury.

5. On question whether there was negligence, it is material to consider consequences prudent man might reasonably have anticipated, but, when negligence is once established consideration of anticipated consequences of act or omission is wholly immaterial in determining extent of liability imposed by it.

6. One guilty of negligence is liable for all injurious consequences flowing from his negligence, until diverted by intervention of some efficient cause making injury its own, or until force set in motion by negligent act or omission has so far spent itself as to be too small for law's notice.

7. In action of tort against power company for negligence in construction of conduit to divert waters of brook and in construction of inadequate dike along side of its pond in river resulting in damage to plaintiff's real and personal property, held that, if diversion system were improperly constructed, so that defendant might reasonably have foreseen that erosion would thereby result in times of usual or known high water, or if dike were insufficient to confine water of river during such times, there would be negligence, notwithstanding defendant did not see that such shortage of duty would, in concurrence and cooperation with unprecedented flood, become producing cause of particular injury.

8. Supreme Court, in determining whether defendant's motion for directed verdict was properly overruled, must take evidence in light most favorable to plaintiff, and determine therefrom whether it fairly and reasonably tended to support plaintiff's claims as to defendant's negligence.

9. In action of tort against power company for negligence resulting in damage to plaintiff's real and personal property during unprecedented flood, held that evidence as to allowance of waterways to exist along conduit, as to failure to place concrete collars which were around pipe against impervious material and placing them in quicksand, as to failure to puddle and properly tamp backfill, as to use of improper material for backfill, and as to improper construction of anchor and outlet ditch, was sufficient to make question of defendant's negligence in those respects for jury.

10. In such action, questions whether brook from which water was diverted in conduit by power company was in state of ordinary or expected flood at time erosion commenced at outlet of diversion system, and whether, due to its construction, it was sufficient to take care of such usual high water, held for jury.

11. In such action, question as to sufficiency of dike constructed by power company along side of its pond in river to prevent overflow in times of periodic or usual high water, held for jury.

12. In such action, court's ruling at close of plaintiff's evidence withdrawing from consideration of jury issue of negligence in construction and maintenance of flashboards on defendant's dam, held not to have effect of striking all evidence concerning flashboards from case, but merely to withdraw issue of negligence in that respect, leaving evidence in case for whatever bearing it might have on other issues still remaining; hence evidence as to height and construction of flashboards was for consideration, so far as it bore upon claimed negligence of defendant in construction of dike and its sufficiency in view of height of water in pond.

13. In such action, evidence held sufficient to make jury question as to whether flashboards on defendant's dam would raise water in pond above height of dike during times of periodic or expected high water, in connection with question whether defendant was negligent in constructing and maintaining dike of insufficient height.

14. In such action, question whether discharge of flood water at certain place was result of erosion working backward along conduit constructed by defendant to divert water from brook by reason of defendant's negligence in constructing such conduit, held for jury.

15. On defendant's motion for directed verdict, evidence must be taken most favorably for plaintiff, and modifying evidence must be disregarded.

16. Contradictions and contradictory inferences are for jury.

17. If testimony is improbable, but not impossible, question is for jury.

18. On defendant's motion for directed verdict, tendency of evidence and not its weight is to be considered, but evidence supporting claim must be more than mere scintilla, question being whether evidence is of such quantity and character as to justify jury, acting reasonably, to predicate verdict thereon in favor of party having burden of proof.

19. In action of tort against power company for negligence resulting in damage to plaintiff's real and personal property during un-

precedented flood, held that sufficiency of dike constructed by defendant was not for jury's consideration, since they could not, without entering field of surmise, reasonably base finding on evidence to effect that any negligence of defendant cooperated with act of God in causing damage.

20. In such action, evidence that defendant's negligence in construction of diversion system cooperated with act of God in causing damage, held sufficient to warrant submission of question to jury.

21. Exception to refusal of court to charge as requested, on ground that defendant was entitled to have proposition embodied in request distinctly set out, but referring to request by number only, held insufficient to apprise court of claimed error.

22. Refusal to give correct...