Louden Irrigating Canal & Reservoir Co. v. Neville, 10493.

• Decision Date: 02 June 1924
• Docket Number: 10493.
• Citation: 227 P. 562,75 Colo. 536
• Parties: LOUDEN IRRIGATING CANAL & RESERVOIR CO. v. NEVILLE.
• Court: Colorado Supreme Court

227 P. 562

75 Colo. 536

LOUDEN IRRIGATING CANAL & RESERVOIR CO. v. NEVILLE.

No. 10493.

Supreme Court of Colorado

June 2, 1924

Rehearing Denied July 7, 1924.

Department 2.

Error to District Court, Larimer County; Neil F. Graham, Judge.

Action by J. E. Neville against the Louden Irrigating Canal &amp Reservoir Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

John H. Simpson and Herman W. Seaman, both of Loveland, for plaintiff in error.

Ab H Romans, of Loveland, and Paul W. Lee, R. W. Fleming, and George H. Shaw, all of Ft. Collins, for defendant in error.

DENISON J.

Neville had a verdict and judgment against the company, plaintiff in error, in an action for negligently allowing its ditch to break and overflow, thereby flooding and damaging plaintiff's land, and the company brings error.

The defendant's motion to make the complaint more specific and certain as to negligence was denied, and upon this ruling error is assigned. There are three answers to this point:

1. The complaint was more specific than necessary, as complaints usually are. It specified negligence as follows:

'That on May 1, 1920, defendant negligently allowed water to break out of said canal and run on plaintiff's land for 70 hours, which ruined three or four acres of land, and that defendant's negligence consisted of

'(a) Negligently operating said ditch, in putting too much water therein and causing the same to break over the bank thereof.

'(b) In not properly patrolling said ditch when it was filled to a dangerous point.

'(c) In not turning water out of said ditch after the same broke out, but letting same run and do unnecessary damage after it had broken out.

'(d) In not having said ditch bank built high enough at the point where the same broke out.

'(e) In putting a dam across Buckhorn creek, beyond and further down from the bank where the same broke out and caused the water that comes down Buckhorn creek to back up said ditch and obstruct the flow thereof, so that it overflowed the bank and came upon the plaintiff's land as aforesaid, and in not providing a proper spillway for the ditch, so as to allow the water that comes down Buckhorn creek to go on down said creek in its natural course, when the defendant's ditch did not have sufficient capacity to take care of the flow in Buckhorn creek.'

2. The matter is in the discretion of the court, not assignable as error, unless prejudice appears. Mulligan v. Smith, 32 Colo. 404, 76 P. 1063.

3. The matter was waived by answering over. Under the original Code, this defect was met by demurrer, and there was the express requirement, as now, that the defect was waived by answer. When the amendment of 1887 permitted a motion upon this point, it left the provision for waiver still in force.

The court permitted the plaintiff's attorney in his opening statement to exhibit and refer to a map which it is claimed showed the alleged defects in the ditch to have been remedied. If this was error, it was not prejudicial, because both sides asked for an inspection of the premises by the jury, and it was done. There is no rule excluding such evidence for purposes other than the proof of negligence. Ft. Collins v. Roten, 72 Colo. 182, 210 P. 326. Moreover, the court excluded the map as evidence, and instructed the jury not to consider it as evidence of negligence.

The plaintiff was permitted to introduce rebuttal evidence in chief; but this was not error, because the order of evidence is discretionary. Cross-questions were allowed which it is claimed were not proper cross-examination, because unrelated to the direct examination. This also is a discretionary matter. It is claimed that upon some of the alleged specifications of negligence there was no proof, and that on others there was not enough. We think we cannot disturb the judgment on the ground of insufficiency of evidence in this case without usurping the functions of the jury. There was some evidence of negligence. Arguments of the plaintiff in error with reference to this point would be of some force with the jury, but not here.

The court gave instruction No. 12 as follows:

'If the injury complained of was caused by an extraordinary flood, which could not have been foreseen and provided against, in other words, was an act of God, and such act was the sole cause of the injury complained of, then the plaintiff cannot

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