Choctaw, O. & G. Ry. Co. v. Sarlls , 7 Indian Terr. 446 ( 1907 )

Townsend, J.

(after stating the facts as above). The plaintiff in error has filed four assignments of error, as follows: “(1) Because the verdict is contrary to the evidence; (2) because the verdict is contrary to law; (3) because the verdict is contrary to the law and the evidence; (4) because the court erred in not directing a verdict for the defendant, the appellant herein” — and says in his argument on the assignments they may be all considered as one, and the sole question then will be whether this verdict can be sustained, and says that the verdict must be set aside because there is no proof to sustain it.

Plaintiff in error insists that the defendant in error alleges his damages both for improper dramage and for obstruction of same; that there is no separation of the two; and no person who reads the complaint and the proof in this case can determine whether the damage which the plaintiff suffered was for the natural overflow of the sewers and culverts, for which he admitted he could not recover, or for the. obstruction of these sewers ,and culverts. They are blended together indeterminably, and there is no specific declaration in the complaint, nor proof to meet that declaration, which renders the gross amount claimed for damages susceptible of division, and the court in its charge to the jury fell into the same error. Plaintiff insists that the pleadings, the proof, and the charge of the court are contradictory and confusing, and no tribunal, whether court or jury, could have from these three reached a rational verdict, and therefore insists the case should be reversed.

The defendant in error contends that the fourth assignment of error — that the court erred in not directing a verdict for the defendant — cannot be considered by this court, because the same was not made in his motion for a new trial, and quotes rule 3 of this court (92 S. W. v) which was adopted June 17, 1904, that in a motion for a new trial it shall be necessary to set out in detail the different particular errors relied upon to secure a new trial. That rule, however, has been superseded by the rule adopted June 15, 1906, which is as follows: “The practice in this court shall be the same as in the United States Circuit Court of Appeals for the Eighth circuit. All motions for new trial under section 726, Revised Statutes of the United States (U. S. Comp. St. 1901, p. 584), may be in general terms and in the manner provided by sections 5151-5155, Mansfield’s Digest of the Statutes of Arkansas (Ind. Ter. Ann. St. 1899, §§ 3356-3360).” This rule provides that motions for new trial may be in general terms, and in the manner provided by sections 5151-5155, Mansfield’s Digest. In Glasscock vs Rosengrant, 55 Ark. 376, 18 S. W. 379, it is held “that motions for new trial waive all previous exceptions not embodied in it,” and same is cited as a construction of section 5153. “Nor will the Supreme Court review rulings touching evidence or instructions, unless made ground of motion for a new trial— citing in support of that proposition Young vs King, 33 Ark. 745, and Koch vs Kimberling, 55 Ark. 547, 18 S. W. 1040.

Defendant in error insists that- no motion was filed to make the complaint more definite; that if the pleadings were indefinite as to damages that was waived by failing to file a motion to make more specific; and that if it is claimed that the court should have instructed the jury that the damages must bo in some way apportioned to each contributing cause it is a sufficient answer to say that the plaintiff in error did not request such instructions. Defendant in error says: “The failure to construct sewers was not proved and was withdrawn from the,jury by the court. Why, then, should anybody say that it was or should have been considered by the jury, or that it entered into the verdict?” The defendant in error says that the law upon which the action was founded may be seen from the following cases: Little Rock & Ft. Smith Co. vs Chapman, 39 Ark. 463, 43 Am. Rep. 280; Railway Co. vs Cook, 57 Ark. 387, 21 S. W. 1066; St. Louis, I. M. & S. Railway Co. vs Anderson, 62 Ark. 360, 35 S. W. 791; Bentonville Railroad Co. vs Baker, 45 Ark. 252; Shane vs Kansas City, etc., R. R. Co., 71 Mo. 237, 36 Am. Rep. 480; 30 Enc. Law. (2d Ed.) 334.

We are satisfied from a careful examination of_ the evidence that under the laiv there ^ was sufficient and ample proof to sustain the verdict in this case, and the judgment of the lower court is therefore affirmed.

Affirmed.

Gill, C. J., and Lawrence, J., concur.