King v. Miles City Irr. Ditch Co.

• Decision Date: 29 July 1895
• Citation: 41 P. 431,16 Mont. 463
• Parties: KING v. MILES CITY IRRIGATING DITCH CO.
• Court: Montana Supreme Court

41 P. 431

16 Mont. 463

KING v. MILES CITY IRRIGATING DITCH CO.

Supreme Court of Montana

July 29, 1895

Appeal from district court, Custer county; George R. Milburn, Judge.

Action by Louis King against the Miles City Irrigating Ditch Company. From an order granting a new trial, plaintiff appeals. Affirmed.

Middleton & Light, for appellant.

Strevell & Porter, for respondent.

DE WITT, J.

This action was brought by the plaintiff to recover damages caused to his ranch by the breaking of the defendant's irrigating ditch. The cause of action, as alleged, and sought to be proved, was the negligence of defendant in the construction and operation of its ditch, by reason of which the same broke and damaged the plaintiff. On a trial to a jury a verdict was rendered for the plaintiff. This verdict was by the court set aside, on motion for a new trial. From this order the plaintiff appeals. The motion was made upon two grounds: First, the insufficiency of the evidence to sustain the verdict; and, second, errors of law. It does not appear upon which ground, or whether upon both, the motion was granted.

The principal error of law complained of was that the court instucted the jury, among other things, as follows: "In this connection the court further instructs the jury that it is incumbent upon the defendant company to construct its flumes and ditches in such a reasonable and prudent manner as that no damage shall result to the person whose lands are crossed by the ditch." This instruction was clearly erroneous. The court undertook to lay down the measure of reasonable and prudent conduct on the part of the defendant. The court did not instruct that the care by the defendant should be either ordinary or extraordinary, but, on the other hand, instructed the jury that the degree of care should be such that no damage should result. The defendant was thus held, not only to the highest and most extraordinary degree of care, but was held to exercise such care that the plaintiff would not suffer any damage. In other words, the instruction made the defendant absolutely an insurer against all damages. It removed the question of negligence from the jury altogether, and practically instructed them that, if the damage occurred, the defendant was liable, without regard to its negligence. This, of course, was error, which error the district court properly corrected in granting the motion for a new trial, and on this ground the...