Hopkins v. Butte & Montana Commercial Co. , 16 Mont. 356 ( 1895 )

De Witt, J.

We are of opinion that there is no question in this case that the damages complained of by plaintiff occurred, and that his loss was fully equal to the amount which the jury found.

The only substantial question in the case is whether the evidence of the defendant’s negligence appears to be sufficient to sustain the verdict found by the jury and upheld by the court in denying the motion for new trial. It seems to be true that the high water was occasioned by an unusually heavy rain in the mountains. In the afternoon of July 12, 1891, the plaintiff heard an unusual noise at the mouth of a slough at the upper end of his ranch. Upon examination he found a log jam had formed at that point. It is true that he admitted that he could not see whether the jam extended across the whole width of the stream. But he testified clearly that there was a jam at that point, and that the jam was throwing the water over the banks of the creek upon his land. He testified further that below the jam the water was within'the banks, and that the swales and sloughs below the jam were dry, and that ordinarily in high water these sloughs would fill up before the water went over the banks. The plaintiff did not know when this jam went out. It may have been on Sunday night. He does not know whether the jam was there Monday. The water stood over his ranch at the maximum depth, the witness thinks, for about 36 hours. It also appears by the testimony of plaintiff that the defendant had only one man looking after the jams on the stream on that Sunday. This man had gone up the stream on Sunday morning, and released a jam near another ranch above plaintiff. This released jam ran down upon the jam at plaintiff’s ranch.

Another witness testified for plaintiff that he had had considerable experience in log driving, and that one man was not sufficient to look after the jams in a drive of logs twelve miles long and containing 5,000,000 feet.

It appeared that the defendant had a considerable force of men — some thirty-five °or forty — working on the drive, but that these men were at the rear end of the drive, and that they were engaged in breaking jams at the rear end, and that the jams so broken would run down upon the lower jams, sometimes breaking through them, and sometimes temporarily making the jams greater, and backing up the water to a greater extent. It was in testimony that men should have been stationed throughout the length of the drive to break jams as they occurred, and thus release the accumulated water. It also appears that in the following year — 1892—the water was nearly, if not quite, as high as in 1891, but that in the second year the defendant, while driving its logs, had men stationed along the drive to break the jams, and by this method of operation the damages which occurred to the ranchmen in 1891 were not repeated in 1892. It thus appears that by a different method of operation the defendant, in 1892, was able to avoid a repetition of the damages which occurred the year previous.

The defendant introduced testimony that it had five men along the creek, and that the object of having them there was to prevent jams which were likely to occur if there was no one to look after them. But this witness does not know what the drivers were doing on the day when the damages occurred. It also appeared that the water stood upon the-plaintiff’s ranch, at the maximum height, for about 36 hours. This, it was claimed, indicated that the flooding occurred by the natural rise of the water, and not by the jam.

This case was before us for consideration in 13 Mont. 223. The case was then sent back for a new trial, for the reason that the court, in its instructions, had ignored the question of negligence, and had, in effect, instructed the jury that they might find for the plaintiff, regardless of the defendant’s negligence. This error was cured on the second trial, and the jury were instructed in this matter. We are of opinion that the evidence was sufficient to sustain the jury in finding the negligence of defendant.

There, is some room to argue that the evidence shows that the flooding would have occurred by reason of the unusually, high water, without regard to the log jams. But there is also evidence that the jams, and the floating and rolling of the logs over the crops, was the cause of the damages. It was the province of the jury to decide these questions of fact, and we are of opinion that they had sufficient evidence upon which to base their conclusion. The fact which we consider significant is that in the succeeding season, when the water was apparently as high as in 1891, damages were prevented by reason of the defendant’s adopting the very simple precautions which plaintiff claims it neglected in the year 1891.

It is also contended that the court erred in allowing certain testimony as to the measure of damages. We think, however, that the case was tried upon the lines laid down in the case of Carron v. Wood. 10 Mont. 500. The value of the crops was shown, and also the expense of maturing them, and of reaping and threshing, and moving to market.

It is also contended that the evidence was not sufficient to show that the mare and colt were lost by the negligence of the defendant. We have determined that the evidence was sufficient to sustain the jury in finding that the flooding occurred through the negligence of the defendant. It further appears that the mare and colt were in the pasture when the flood came; that the water was from 2 to 15 feet deep; that nothing was again seen of the mare and colt. We think this evidence is quite sufficient to show that these animals suffered from the same disaster that destroyed the fences and crops.

The court allowed the plaintiff to prove the forming of certain other jams in the drive above plaintiff’s ranch. This was objected to as incompetent. Plaintiff wished to show by this testimony what the action of the water was when retained by a log jam. We think this evidence was not objectionable when it is also considered that these other jams were in the same drive of logs. They showed the method of operating adopted by the defendant in allowing jams to form, and in breaking them by precipitating other jams upon them, instead of releasing them as they formed. The judgment and order denying the new trial are affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.