Mogote-Northeastern Consol. Ditch Co. v. Gallegos

• Docket Number: 9867.
• Decision Date: 09 January 1922
• Citation: 203 P. 668,70 Colo. 550
• Parties: MOGOTE-NORTHEASTERN CONSOL. DITCH CO. v. GALLEGOS.
• Court: Colorado Supreme Court

203 P. 668

70 Colo. 550

MOGOTE-NORTHEASTERN CONSOL. DITCH CO. v. GALLEGOS.

No. 9867.

Supreme Court of Colorado, En Banc.

January 9, 1922

Error to District Court, Conejos County; James C. Wiley, Judge.

Action by Rodolfo Gallegos against the Mogote-Northeastern Consolidated Ditch Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Ralph L. Carr, of Antonito, for plaintiff in error.

James P. Veerkamp, of Monte Vista, for defendant in error.

WHITFORD J.

In the court below defendant in error was plaintiff, and plaintiff in error was defendant. The parties herein will be designated as in the trial court. The defendant is a corporation organized for the purpose of operating an irrigation ditch. The ditch is constructed across the lands of the plaintiff and within 75 yards of his residence, corral, and other ranch houses. The complaint alleged that the defendant negligently and carelessly ran water in its irrigation canal in the month of January, 1919, and that in consequence thereof ice formed and accumulated in the ditch near plaintiff's home and the ranch houses, thereby obstructing the flow of water in the channel of the canal, which resulted in an overflow of its embankments upon plaintiff's premises, where water stood and ice formed to the depth of 1 1/2 feet about his house, barn, corral, garage, and yard, causing him to suffer damages to his buildings, live stock and other personal property. The answer denied negligence, and as an affirmative defense alleged that the freezing and overflow were the result of inevitable accident or an act of God, and also that the plaintiff was guilty of contributory negligence. The trial resulted in a verdict for the plaintiff, and motion for a new trial was denied, and judgment entered for $1,800.

The first, second, third, and fourth assignments of error relate to the admission of testimony over the objection of defendant.

The following question was asked the witness Lucero, and he was permitted to answer over the specific objection of the defendant that it called for a conclusion of the witness which was the ultimate fact to be found by the jury:

'Now you may state what amount the house has been damaged. A. $1,700.'

The witness was also asked:

'You may state what the amount of damage was to the garage. A. $75.'

Similar questions were asked the witness with respect to the damage to the well and trees. The questions were improper, and the objections should have been sustained. The witness was thus called upon to usurp the province of the jury and determine the ultimate fact to be tried by it. The admission of the evidence was clearly erroneous. Old v. Keener, 22 Colo. 6-10, 43 P. 127; Montelius v. Atherton, 6 Colo. 224-230; Ft. Collins D. R. Co. v. France, 41 Colo. 512-520, 92 P. 953.

Another assignment of error is that the court charged the jury that----

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