Scherz v. Platte Valley Public Power & Irr. Dist.
| Decision Date | 26 May 1949 |
| Docket Number | 32532. |
| Citation | 37 N.W.2d 721,151 Neb. 415 |
| Court | Nebraska Supreme Court |
| Parties | SCHERZ et al. v. PLATTE VALLEY PUBLIC POWER & IRRIGATION DIST. |
Syllabus by the Court.
1. In determining whether or not a verdict should have been directed by the trial court, the evidence must be considered in the light most favorable to the party against whom the motion was made; that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.
2. When the evidence is in conflict and such that reasonable's minds can draw different conclusions therefrom, it presents a question of fact for a jury.
3. Under section 70-671, R.S.1943, a public power district is liable for seepage caused from waters escaping from its works when and if it accrues.
4. Matters inhering in the verdict of a jury cannot afterward be attacked by the affidavits or testimony of the jurors. Evidence of jurors on such matters should be excluded by the trial court.
5. A juror will not be permitted to state to his fellow jurors while they are considering their verdict, facts within his personal knowledge and not given in evidence. If such facts relate to a matter in dispute and influence the jury in arriving at a verdict, it constitutes prejudicial error.
6. Such facts may properly be established by the affidavits or testimony of jurors for the reason that such misconduct on the part of a juror does not inhere in the verdict.
7. A trial court may not grant a new trial for arbitrary, vague or fanciful reasons.
8. When the evidence adduced in support of a motion for a new trial is sufficient to sustain the finding of the court thereon, it cannot be said that the trial court abused its discretion in granting a new trial.
Crosby & Crosby, North Platte, Robert H. Beatty, North Platte for appellant.
Carr & Hoagland, North Platte, C. L. Baskins, North Platte, for appellee.
Heard before SIMMONS, C. J. CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
Plaintiffs brought this action to recover damages to their lands and crops caused by seepage waters which were alleged to have escaped from the reservoir and canal of the Platte Valley Public Power and Irrigation District. The jury returned a verdict for the defendant. Plaintiffs filed a motion for a new trial which was sustained by the trial court. The defendant appeals from the order granting a new trial.
The district contends that the evidence was insufficient to sustain a judgment for plaintiffs and that its motion for a directed verdict should have been sustained. It urges that this being true, the errors assigned by the plaintiffs could in no way prejudice the plaintiffs. It is the rule that when a successful litigant was entitled to a directed verdict, or when the proof is so clear and convincing that no other verdict could, within reason, have been returned, it becomes unnecessary to consider other claimed errors presented, for the reason that it is thereby shown that no substantial right of the unsuccessful litigant has been affected by such errors, if found to be such. Hardin Trust Co. v. Wollard, 119 Neb. 307, 228 N.W. 866. It is necessary therefore to determine if the defendant was entitled to a directed verdict.
In determining whether or not a verdict should have been directed, the evidence must be considered in the light most favorable to the party against whom the motion was made. Controverted facts must be resolved in his favor and he is entitled to the benefit of every inference that can be reasonably deduced therefrom.
The district is liable for seepage escaping from its works when and if it accrues. S. 70-671, R.S.1943. The district contends, however, that the evidence does not disclose that waters escaping from its works have damaged the lands of the plaintiffs, that a causal connection between escaped waters of the district and the seeped condition is not shown, and that the verdict therefore rests on speculation and conjecture. That proof establishing a causal connection between the waters of the district and the seeped condition of plaintiffs' lands is essential to a recovery of damages has been firmly established as the law of this state. Smith v. Platte Valley Public Power and Irrigation District, 151 Neb. 49, 36 N.W.2d 478.
The evidence on behalf of plaintiffs shows that when the defendant commenced its operations and filled its reservoir and canal, large amounts of water escaped and caused the level of the ground water under plaintiffs' lands to rise and thereby caused their lands to become seeped. The defendant's evidence is to the effect that the waters escaping from its reservoir and canal never did reach the lands of these plaintiffs and that the seeped lands were the result of natural conditions brought about by abnormally high rainfall and low evaporation and transpiration. That plaintiffs' lands became seeped in 1942 and continued in that condition until the trial, is established by the evidence and not disputed by the parties.
The parties offered the evidence of expert witnesses to show the cause of the seepage. The district contends that the testimony of plaintiffs' expert that he could not say whether or not waters from the district's reservoir or canal had found their way to plaintiffs' lands was sufficient to show that plaintiffs' case was grounded on speculation and conjecture, and therefore insufficient to support a judgment. Plaintiffs' expert testified, however, that although the proof tended to show that waters escaping from defendant's reservoir and canal may not have reached the lands of the plaintiffs, such waters had by hydrostatic pressure on existing ground waters raised the level thereof to such an extent as to cause the lands of plaintiffs to become seeped and waterlogged. It is true that the evidence of the experts was in conflict. It thus became a question for the jury to determine after considering the qualifications,...
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