Alexander v. Oklahoma City , 22 Okla. 838 ( 1908 )

The main question of fact tried in this case was whether the breakwater erected by defendant 1,500 feet above the dam, and 40 feet along the north bank of the stream, threw the current of the river against the south bank in such a way as to hurl it against the south end of the dam and caused the washing away of plaintiffs' land across the dam at the south end and, during the high water of 1903, forced it back upon plaintiffs' land, or whether, as contended by defendant, the dam had nothing to do with the injury complained of, but that a gorge some 350 feet below the dam during said high water became so congested as to submerge the dam and erode the bank at its south end and forced the water back upon said land. After a fair trial, so far as we can see, and after much expert testimony and the introduction of three blue-prints, showing every phase of the contention the jury returned special findings and a general verdict for the defendant. As there is no motion by plaintiffs for judgmentnon obstante upon the special findings, we cannot pass upon the question whether they were sufficient to support the general verdict, and as the record shows that no exception was taken to the instructions of the court to the jury, either separate or as a whole, we cannot consider any error alleged therein.Carter Brothers v. Missouri Mining Lumber Company,6 Okla. 11, 41 P. 356. As the record also shows that no exception was saved to the order of the court overruling plaintiffs' motion for a new trial, and as the errors set forth in the petition in error are alleged to have occurred on the trial of the cause, it follows that there is nothing before us for review. City ofEnid v. Wigger, 15 Okla. 507, 85 P. 697; Vaughn Lumber Co. v.Missouri Lumber Co., 3 Okla. 174, 41 P. 81; City of Atchisonv. Byrnes, 22 Kan. 65, and cases there cited.

The appeal is therefore dismissed.

All the Justices concur.