Crawford v. Cobbs & Mitchell Co.

McBRIDE, J. While the testimony is in some respects indefinite and others contradictory, and while much space is occupied with presenting the law in this case, there is really but one question for decision, *632 and that is, whether there was any substantial evidence to justify the verdict in this case. The following principles of law may be taken as well established. First, as applicable to this case, that the defendant had the right to erect and maintain its dam at the place where it was constructed and to impound the water therein to the full height of the dam. Second, that it had, in case of a flood or unusual high water, the right to permit flood waters to pass through or over the dam in such quantities as flowed into it. Third, that they had no right, after having impounded the water, to release it in larger quantities than were then flowing into it from above thereby adding to the normal flow of waters so released by their act in ‘raising the flood-gate. Fourth, that if, in addition to the normal flow, defendant, by suddenly releasing large quantities of water in addition to the flood water then coming into its dam, caused damage to the plaintiff either solely by the water so released, or concurrently with the flood water which was going down, it is liable for such damage. The evidence indicates that there was a tremendous and unusual storm extending not only over the basin of the Siletz River, but generally over the county of Lincoln. It is fair to say that the storm and rise of the water caused by the rainfall, if not unprecedented, at least, had no precedent within recent years as is shown by the fact that bridges not only on the Siletz River, but on other streams remote from the Siletz basin, were also carried away and more or less damage done to property upon the banks of such streams. The plaintiff labored under the difficulty of having to present its case upon the testimony of wit *633 nesses then or theretofore in the employ of the defendant, and presumably not particularly anxious to communicate voluntarily any fact which might be of injury to defendant’s case. The defense of defendant is that at the .time of opening the gate, it released no more water than was coming in from above and that if that was the case, the court should have directed a verdict for the defendant as the burden of proof was upon the plaintiff to show that defendant released more water through its gate than the flood waters flowing into the pond. While the testimony on this point, on behalf of plaintiff, is far from being wholly satisfactory, we are of the opinion that there was testimony enough to entitle the ease to go to the jury. If, as claimed by defendant, the dam was already full and the water overflowing, there could be no reasonable necessity for opening the flood-gate and allowing the water to escape through it. Having reached, according to' this theory, the point where the flood waters would pass over the dam, there could be no further danger to the dam or other mill property by reason of the water flowing in from above. It seems plain, from the circumstances of the case, that the object of raising the gate was not therefore to permit the flood waters going into the pond to escape, but to permit flood waters already accumulated in the pond likewise to escape for defendant’s own convenience or safety to its buildings, and that the plaintiff had a right fairly to infer that, in additon to the flood waters passing over the top of the dam, the defendant, by the act of suddenly raising the gate, set free a tremendous amount of water, which had accumulated in the dam and which necessarily and suddenly increased the flow in the river *634 below. While the exact amount of the rise from this cause is not capable of mathematical calculation, it was for the jury to say, under all the circumstances, whether this contribution of impounded water was a contributory cause to the injuries suffered by plaintiff. It stands to reason that an opening 12 by 18 feet, which is the minimum fixed by the witnesses in a pond of water containing 600 acres and 40 feet in depth at the head of the dam, was competent to have produced the cause of the accident, or, at least, that it was fairly probable that the injury was produced by thes acceleration of water in the bed of the stream below the dam rather than by other causes which will be hereinafter mentioned. It seems from the evidence that the rise, while all of the time during Saturday and Sunday was rapid, within a few hours after the flood-gate was raised it rose with very great suddenness, which renders it fairly probable that the water rushing through the flood-gate out of the dam was a contributory cause of the sudden rise in the river below and the consequent injury. An incident occurring after that on the 25th of November tends to throw some light upon the effect of suddenly opening the flood-gate. On that day the same gate, which was opened on November 20th, broke and went out, allowing the impounded water to rush down the river below and that too while there was little rain on that date. And further, that several hours after the going out of the gate the water below the Siletz agency rose from eight to ten feet without any apparent cause excepting the breaking out of the gate. Assuming that a like effect and a like quantity of water flowed out on November 20th, it furnished some proof upon which a jury had a right to act as to the effect *635 of the water so released on the 20th upon the height of the water below. It is contended, however, that the storm being general over all the Siletz watershed, and by reason of several streams below the dam being at a highly swollen stage of water, and the jury being unable to differentiate the various factors entering into the unprecedented rise of the Siletz, it amounted to a mere speculation as to whether the opening of the dam was a factor in the injuries produced. Evidence is also introduced of a slide of several acres, which it is contended has a tendency to divert the water from its usual channel over and against the-land or premises of the plaintiff. It is claimed that this is another factor in assuming the cause of damage which reduces the consideration of these facts by the jury to mere speculation. But all of these matters, of course, were proper questions for the jury, and we do not think the consideration of their effect was wholly speculative, or that it reduced the question of what particular cause produced the injuries to plaintiff’s property to a matter of mere speculation. Of course, in cases where it is just as probable, on the face of it, that one cause was as likely to have produced the injury as another, there can be no verdict based upon an exact balance of probabilities, which would reduce the verdict to mere guesswork or chance, but we think, taking- into consideration all the facts, that there was evidence competent to go to the jury tending to show that the most probable cause of the injury was the sudden release of impounded water from the dam, and that this is not a case in which the court should have directed a verdict. The temptation is great to give the whole testimony in the *636 case, but it would unnecessarily enlarge tbe scope of tbis opinion and be of little value to tbe profession. For appellant there was a brief over tbe names of Mr. G. L. Starr and Messrs. McCamant é Thompson, with an oral argument by Mr. W. Lair Thompson. For respondent there was a brief over tbe names of Mr. Arthur Glarke, Mr. Oscar Hayter and Mr„ G. B. McGluskey, with oral arguments by Mr. Glarke and Mr. Hayter. Tbe judgment of the Circuit Court is affirmed. Affirmed. Belt, J., not sitting.