Snyder v. Farmers Irr. Dist., 33342

• Decision Date: 18 December 1953
• Docket Number: No. 33342,33342
• Citation: 157 Neb. 771,61 N.W.2d 557
• Parties: SNYDER v. FARMERS IRR. DIST.
• Court: Nebraska Supreme Court

Page 557

61 N.W.2d 557

157 Neb. 771

SNYDER v. FARMERS IRR. DIST.

No. 33342.

Supreme Court of Nebraska.

Dec. 18, 1953.

Syllabus by the Court.

1. The proper method of presenting a case to the jury is a clear and concise statement by the court of those issues which find support in the evidence and not by substantially copying the pleadings of the parties and if, by doing the latter, it results in prejudice to the complaining party it is a sufficient ground for reversal.

2. An act of God is such an unusual and extraordinary manifestation of the forces of nature that it could not under normal conditions have been reasonably anticipated or expected.

3. Act of God does not necessarily mean an operation of natural forces so violent and unexpected that no human foresight or skill could possibly have prevented its effects. It is enough that the accident should be such as human foresight could not be reasonably expected to anticipate; and whether it comes within this description is ordinarily a question of fact.

4. Where different minds may draw different inferences or conclusions from the facts proved, or if there is a conflict in the evidence, the matter at issue must be submitted to the jury to be determined; but, where the evidence is undisputed, and but one reasonable inference can be drawn from the facts, the question is one of law for the court.

5. It is not the province of this court in reviewing the record in an action at law to resolve conflicts in or weigh the evidence.

6. It is presumed in such an action that controverted facts were decided by the jury in favor of the successful party, and its finding based on conflicting evidence will not be disturbed unless clearly wrong.

Mothersead, Wright & Simmons, Scottsbluff, for appellant.

Neighbors & Danielson, Scottsbluff, for appellee.

Heard before MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

A petition containing 10 comparable causes of action was filed by plaintiff Walter A. Snyder in his own behalf and as assignee of other named persons who all lived north of the railroad tracks in the westerly portion of Bayard, Nebraska. Plaintiff sought recovery of damages to both described personal and real property caused by an overflow of flood waters on August 25, 1950, alleged to have been proximately caused by negligence of defendant, Farmers Irrigation District. Generally, plaintiff alleged that defendant failed to properly maintain and operate its irrigation system, particularly an artificial drainage ditch known as Wild Horse Drain, in such manner as to carry a volume of water which would be reasonably anticipated to flow therein. Defendant for answer admitted that on said date the ditch overflowed its banks upon some of the described property. It otherwise denied generally and alleged that any damages suffered by plaintiff and his assignors were proximately caused by an act of God, that is, by an unprecedented rain storm of flood proportions which occurred above and north of defendant's main canal and suddenly without warning overflowed therein, causing a break in its lower bank, which, together with such rain as fell below its canal flowed into the drainage ditch here involved, causing it to overflow within the corporate limits of Bayard. Defendant further alleged that plaintiff and his assignors were warned of the approaching great flood danger in ample time to have removed or protected their personal property, but they negligently failed to heed such warning and make any reasonable effort to do so, which proximately caused the damages thereto. Insofar as important here, plaintiff's reply admitted that on August 25, 1950, a break occurred in the lower bank of defendant's main canal, but otherwise denied generally.

Upon trial to a jury, the court overruled defendant's motion to direct or dismiss made at conclusion of plaintiff's evidence, which was renewed at conclusion of all the evidence, and also refused to give plaintiff's requested instruction No. 1, which in effect would have instructed the jury that defendant was proximately negligent as a matter of law, and the only issue for its determination was the amount of damages sustained by plaintiff. Thereafter the issues of negligence, act of God, and proximate cause, together with the respective burdens of proof with relation thereto, were submitted to the jury, whereupon it returned a verdict for defendant. Plaintiff's motion for new trial was overruled, and judgment was rendered on the verdict. Therefrom plaintiff appealed, assigning that the trial court erred prejudicially in refusing to give his requested instructions Nos. 1 and 3, and in giving instructions Nos. 3, 6, 7, 8, 9, 10, 11, and 18 on its own motion. We conclude that the assignments should not be sustained.

In that regard, the substance of plaintiff's requested instruction No. 3, refused by the trial court, was contained in and adequately presented by instructions Nos. 6, 7, and 8 given by the court on its own motion, so that its refusal does not require further particular discussion. In the final analysis the force of plaintiff's assignments was to contend that the trial court prejudicially erred in submitting any issue except the amount of plaintiff's damages, and in submitting to the jury defendant's alleged issue of warning contained in instruction No. 3 given by the trial court on its own motion.

As we view it, the latter contention is the more serious question and will be first discussed. Such instruction No. 3 was a resume of defendant's answer, which set forth not only defendant's general denial and its allegations that plaintiff's damages were proximately caused by an act of God, but also those relating to warnings given to plaintiff and his assignors, with regard to their personal property, as heretofore set forth. Plaintiff argued that the latter allegations therein set forth presented an issue not supported by any evidence, and that the submission thereof was prejudicial to plaintiff. We conclude otherwise.

In that regard, plaintiff relies upon Weisenmiller v. Nestor, 154 Neb. 839, 49 N.W.2d 679, which is clearly distinguishable, and Conley v. Hays, 153 Neb. 733, 45 N.W.2d 900, 902, which held that: 'It is error to set forth literally or substantially the pleadings in an action when to do so is to place before the jury issuable matters which find no support in the evidence.' The situation in that case was comparable with the one at bar in some respects, but there as here it was finally concluded that the instruction, although erroneous, was not prejudicial requiring a new trial.

As held in Franks v. Jirdon, 146 Neb. 585, 20 N.W.2d 597, 598: 'The proper method of presenting a case to the jury is a clear and concise statement by the court of those issues which find support in the evidence and not by substantially copying the pleadings of the parties and if, by doing the latter, it results in prejudice to the complaining party it is a sufficient ground for reversal.' In that opinion, involving a comparable situation, it was said: 'This court has frequently criticized the practice of copying the pleadings as a method of stating the issues to a jury and where they contain allegations not supported by evidence it may be reversible error to include such allegations in defining the issues if the reviewing court is satisfied that the jury may have been misled thereby. See Hutchinson v. Western Bridge & Construction Co., 97 Neb. 439, 150 N.W. 193; McClelland v. Interstate Transit Lines, 139 Neb. 146, 296 N.W. 757. However, the fact that the court copied the pleadings in presenting the case to the jury is not alone sufficient to cause a reversal unless it can be said that the complaining party was prejudiced thereby. See Scott v. New England Mutual Life Insurance Co., 128 Neb. 867, 260 N.W. 377; Merritt v. Ash Grove Lime & Portland Cement Co., 136 Neb. 52, 285 N.W. 97. * * * The court instructed the jury that these instructions merely set forth the contentions of the parties and were not to be considered as evidence. The issues were subsequently limited and defined in other instructions. While it would have been better to have left out of instruction No. 2 the allegations discussed under the first and third phases of the criticized language, however, we do not think the jury could have been misled by the language used in view of the instructions as a whole and therefore come to the conclusion that it does not constitute prejudicial error.' See, also, Shiers v. Cowgill, 157 Neb. 265, 59 N.W.2d 407.

In the case at bar, following a resume of the pleadings instruction No. 5 said: 'The above instructions merely set forth the contentions of the parties in this case as disclosed by the pleadings filed and in no manner are to be considered by the jury as evidence in the case.' The issue of warning, if legally operative to mitigate plaintiff's damages, could not have had any bearing in any event unless it was first found that defendant was negligent and not entitled to the defense of act of God. The issue was never again specifically mentioned or elaborated upon in any manner by any other instructions, and no requests were made therefor either by plaintiff or defendant, who ultimately obtained a verdict. Also, concededly, as alleged by defendant, ample timely warning of the magnitude of the flood was personally given to at least three of plaintiff's assignors, and the record discloses that city police or firemen went to every home endangered and so warned all persons who were there. True, there is evidence that plaintiff himself was not at home at the time, although his wife and daughter were. It therefore appears that there was some competent evidence in the record to support such issue as against at least some of plaintiff's assignors. However, its operative legal force or effect as to them we are not required to discuss or decide.

That is true because in any event other instructions clearly...