John v. Edward
| Decision Date | 16 November 1918 |
| Court | North Dakota Supreme Court |
Actions to recover for injuries occasioned by the flooding of plaintiff's premises.
Appeal from the District Court of Stark County, Honorable W. C Crawford, Judge.
Motion for judgment on special verdicts denied and new trials ordered.
Defendant appeals.
Reversed.
Reversed and remanded, with directions.
Watson Young, & Conmy, for appellant.
In order to entitle plaintiff to have judgment on a special verdict, the jury must have answered all the questions in the special verdict in such a way so as to find all the material facts necessary to constitute plaintiffs cause of action and to eliminate the defenses to same. Hedderick v. Hedderick, 18 N.D. 488; Morrison v. Stone, 37 P. 142.
Where the facts stated in answer to an interrogatory are such as to preclude a recovery the court must so adjudge. Rice v. Evansville, 108 Ind. 7, 11, 9 N.E. 139; Railway Co. v. Pinchin, 112 Ind. 597, 13 N.E. 677; Korrady v. Lake Shore & M. S. R. Co. 29 N.E. 1071; Dull v. Cleveland, C. C. & St. L. R. Co. 52 N.E. 1013.
A venire de novo will not be awarded for defects and uncertainties in a special verdict unless they are such that no judgment can be rendered upon the verdict. Salem-Bedford Stone Co. v. O'Brien, 49 N.E. 457; Spaulding v. Mott, 76 N.E. 620; Hadley v. Lake Erie R. Co. 46 N.E. 935, 51 N.E. 337; Smith v. Barber, 53 N.E. 1014; Waterberry v. Miller, 41 N.E. 383; Myers v. Green, 69 Am. St. Rep. 344, 51 N.E. 942; Hedderick v. Hedderick, 18 N.D. 494, 123 N.W. 276; Bush v. Maxwell (Wis.) 48 N.W. 250; White v. Bailey, 14 Conn. 272; Johnson v. Ins. Co. 39 Mich. 33.
Where a special verdict fails to determine all the controverted material issues by the facts found, such issues as are ignored must be regarded as not sustained by the party on whom rests the burden of proof. 22 Enc. Pl. & Pr. 996; Brazil Block Co. v. Hoodlet (Ind.) 27 N.E. 74; Wabash R. Co. v. Ray, 51 N.E. 920; Cleveland R. Co. v. Miller, 49 N.E. 445; Ballard v. Citizens St. Ry. 47 N.E. 643; Atchison, T. & S. F. R. Co. v. McCandless, 6 P. 587; Croan v. Baden, 85 P. 532; Mulvaney v. Burrows (Iowa) 132 N.W. 873; Dougherty v. Snyder, 71 S.W. 463; A. T. & S. F. R. Co. v. Johnson, 41 P. 641; Hayes v. Smith, 15 Ohio C. C. 300; State v. Jackson (Ind.) 100 N.E. 479; Reeves v. C. M. & St. P. R. Co. (S.D.) 123 N.W. 498; Flannery v. Ry. Co. 23 Mo.App. 120; Allen v. Lizer (Kan.) 58 P. 238; Missouri, K. & T. R. Co. v. Bussel, 71 P. 261.
Defendants are entitled to judgment unless there be a finding showing defendants' negligence proximately caused the loss. Maitland v. Paper Co. (Wis.) 72 N.W. 1124; Groth v. Thomas, 86 N.W. 178; Baynowski v. Lumberman Co. 67 N.W. 1171; Watson v. Colusa Min. Co. 79 P. 15; Newark v. Chestnut Hill Land Co. 75 A. 645; McDonough v. R. M. M. Co. 38 N.D. 465, 165 N.W. 504; Chybonski v. Bucyrus Co. (Wis.) 106 N.W. 833; Meehan v. Great Northern R. Co. 13 N.D. 443, 101 N.W. 183; Black v. Fair Association, 164 N.W. 297; Adams v. Mining Co. 11 L.R.A.(N.S.) 845.
T. F. Murtha and Thomas H. Pugh, for respondents.
An order denying a motion for judgment notwithstanding the verdict is not an appealable order. To be reviewed on appeal such an order must be included in or connected with a denial of a motion for a new trial. Turner v. Crumption, 25 N.D. 134; Comp. Laws 1913, § 7841; Persons v. Simons, 1 N.D. 243, 46 N.W. 969; Hodge v. Franklin Ins. Co. (Wis.) 126 N.W. 1098; Ripon Hdw. Co. v. Dodge (Wis.) 123 N.W. 659; Watkins Med. Co. v. McCall (Minn.) 133 N.W. 966; Oelschlegel v. Ry. (Minn.) 73 N.W. 631; Hostager v. Northwestern Paper Co. (Minn.) 124 N.W. 213.
Statement of facts by BRUCE, Ch. J.
These are actions for damages occasioned by the flooding of the plaintiffs' premises by water alleged to have been obstructed by the defendants' railroad embankment, and during the same storm as that which was considered in the cases of Soules v. Northern P. R. Co. 34 N.D. 7, L.R.A.1917A, 501, 157 N.W. 823, and Reichert v. Northern P. R. Co. 39 N.D. 114 at 115, 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 4-foot culvert maintained by the defendant, if not obstructed by any floating street culvert crossing or other debris, 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 4-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 running 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 4-foot culvert maintained by the defendant, if obstructed by any floating street platform or other debris, 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 debris 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; Zeismer, $ 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.
BRUCE, Ch. 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 P. R. Co. 34 N.D. 7, L.R.A. 1917A, 501, 157 N.W. 823, and Reichert v. Northern P. R. Co. 39 N.D. 114, 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 P. R. Co. supra. 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?
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...
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