Inhabitants of Topsham v. Inhabitants of Lisbon

Barrows, J. The case is presented upon exceptions, and mo — 460 — tion to set aside the verdict as against evidence and the weight of evidence, and because the defendants deem the damages excessive. The action is case — setting forth the existence of a highway between the two towns crossing Little River, and of an abutment, bridge and embankment on the Topsham side forming a part of said highway, which the plaintiff town was bound by law to keep in repair, and alleging a negligent and unlawful obstruction of the natural course of the water by the defendants, turning the stream against the eastern bank, causing it to cut a new channel, destroying and washing awaythe plaintiffs’ abutment, bridge and embankment, and putting them to great expense to restore the same as they were obliged by law to do. To this the defendants pleaded not guilty with a, brief statement setting out a legal location in the town of Lisbon across the western branch' of Little River, and the island between the western and eastern channels, to Topsham, and alleging that all they did in the premises was done with ordinary care and skill, and without negligence, in pursuance of their legal obligation to construct the way thus located. Much testimony was offered and heard, and the jury were taken to the locality, and had a view of the premises. Neither of the exceptions to the -admission or exclusion of testimony is relied on, or referred to by the defendants’ counsel in argument. Nor do we see any occasion to notice them in detail. The rulings in those matters seem to have been correct. The exceptions to the permission of the amendment, and to the refusal to rule that the location of the road in Topsham was insufficient to require the town to make the road or abutment or bridge, and that for that reason the plaintiffs could not recover, though prominent in the bill of exceptions, are not alluded to by the able counsel in argument, and we suppose may be regarded as waived. But however that may be, the exceptions cannot avail the defendants. It is questionable whether it is necessary to charge that the act was negligently or unlawfully done, when the obstruction of the natural course of a stream to the injury of the plaintiff is alleged. It would rather seem that the justification of the act should appear — 461 — in the defendants’ brief statement. So these defendants seem to have thought when they filed their pleadings, and the authorities cited by the plaintiffs look that way. But if this were not so, and the amendment were material, it is well settled that the allowance of such an amendment, under the circumstances, in order to place upon the record more distinctly the issue which the parties had been litigating, is within the discretionary power of the court, and not open to exceptions. Howe’s Practice, p. 385. Pullen v. Hutchinson, 25 Maine, 249. Under statutes and rules similar to our own, touching amendments, it may be done even after verdict. Bannon v. Angier, 2 Allen, 128. Colton v. King, id., 317. The necessity for the eighth requested instruction was obviated by the amendment. All that was applicable to the case in that request appears in the charge. Nor would it have been proper to give the instruction requested, with regard to the obligation of Topsham to build the road and bridge. The records taken as a whole, showed jurisdiction and an actual location. Until quashed the validity of that location could not be questioned in a suit like this. Cyr v. Dufour, 62 Maine, 20. Nor do we observe any essential defects in the location. Detroit v. Co. Com’rs, 52 Maine, 210. No complaint is now made that the jury were not instructed substantially in conformity with the second and third requests. But the defendants insist upon their exceptions to the omission to give their fourth, fifth, sixth and seventh requested instructions, specially in the form requested, and to the instructions which were given respecting the points to which those requests relate. These requests relate to the effect of alleged contributory causes of the damage which the plaintiffs had suffered. To test the justice of the defendants’ complaints, we must look to see what positions were taken by the parties upon the evidence and what instructions were in fact given. The defendants contended that such contributory causes might be found in the negligence of plaintiffs, who (they claimed) had built an unsuitable and unsafe abutment, and in an unusual and extraordinary freshet. Now, touching these matters, the judge, after giving an extended — 462 — definition of the term ordinary care as used in this connection told the jury: “It is for the plaintiff to establish to your satisfaction that the sole, true and efficient cause of the damage which occurred here was the want of such ordinary care on the part of the defendants.” The jury were further instructed that the general result must depend upon their answers to three questions which were thus stated to them. “Was this damage occasioned in part by an extraordinary outburst of the powers of nature in storm and freshet, such as men of ordinary prudence could not be reasonably expected to anticipate or pro vide for ? If it was, the plaintiffs cannot recover. Was it occasioned in any degree by the plaintiffs’ want of ordinary care as I have defined it to you, in the construction of their own abutment ? If so, the plaintiffs cannot recover. Or was the real, true, efficient cause the want of ordinary care on the part of the defendants in the construction of the work on their side of the stream % If that was the cause, the plaintiffs are entitled to a verdict.” The attention of the jury was thus directly called to the only contributory causes which had been surmised or suggested, and the jury were told that if the mischief had been occasioned “in part” or “in any degree,” by either of them, the plaintiffs could not recover. This in addition to the previous instruction, that it was incumbent on the plaintiffs to satisfy the jury that the sole, true and efficient cause was the defendants’ want of ordinary care. The defendants object to the use by the judge of the term “real, true, and efficient cause” in this connection; but such epithets were properly descriptive of the cause for which the jury were to look. The defendants complain also of the caution given to the jury not to indulge in nice logical refinements as to what constitutes a sole cause, but to apply their common sense and ascertain what was the real, true, efficient cause of the damage. Such a caution though perhaps needless might prevent the jury from becoming involved in a fruitless discussion about “a chain of causation in successive links, endless ;” and it is entirely consistent with the doctrine which this court has long held, as illustrated in Bigelow v. Reed, 51 Maine, 325; Willey v. Belfast, 61 Maine, 569; — 463 — Stone v. Augusta, 46 Maine, 127; and China v. Southwick, 12 Maine, 238. The defendants’ counsel thinks that the language of the judge convoyed to the jury an erroneous idea of the character of the storm and freshet which could be regarded as a contributory cause. Possibly the judge’s imagination was affected by the eloquent description which the defendants’ counsel had given of the outpouring of the heavens that day; but the test by which the jury were directed to try the storm was correct, and sufficiently prosaic. They were directed to inquire whether it was such a storm as men of ordinary prudence could not be reasonably expected to anticipate and provide for; if the disaster was attributable in part to such a storm then the plaintiffs could not recover. ¥e think the instructions taken together gave the jury the correct rule on these points. Gray v. Harris, 107 Mass., 492. If so the defendants cannot sustain exceptions because the precise form which they preferred and suggested was not adopted. State v. Pike, 65 Maine, 111, and cases there cited. It is also claimed that the ruling as to the measure of damages was indefinite and wrong, and prejudicial to the defendants. Upon that branch of the case the jury were told that “the plaintiffs if entitled to recover, are entitled to recover upon the ground that they are bound by law to make that way safe and convenient for travelers.” The measure of damages given them was the expense that the plaintiffs had necessarily incurred on account of the damage done — “not necessarily the amount which they have expended, but what under all the circumstances, it was necessary and suitable they should expend to make the way there safe and convenient for travelers — not necessarily limited to the cost of the original abutment.” If under the rule given, the jury had gone beyond the amount which the plaintiffs had actually expended and interest, we think there would have been some ground for complaint. The judge should have said, “not necessarily the amount which they have expended, but so much thereof as under all the circumstances, it was necessary and suitable they should expend to make the way — 464 — there safe and convenient for travelers, not necessarily limited to the cost of the original structure.” The plaintiffs were entitled to compensation for the expense which they had necessarily incurred in consequence of the fault of the defendants. It could not be exactly defined. It could not in the nature of things be limited to the cost of the original structure. That might not be a safe or a just rule for either party. The right of the plaintiffs to recover anything arose out of their obligation to maintain the way and bridge there. To replace it after its destruction might cost less or more than it did to build it in the first place. It would probably be more. But, less or more, the expense which the plaintiffs had reasonably and necessarily incurred to fulfil their obligation to the public once discharged but imposed anew by the wrongful act of the defendants was the proper sum to compensate them for the injury they had suffered. Some modification might have been necessary if the structure had been old or decayed so that a speedy renewal would in any event have been necessary. Such was not the case. The work was substantially new. The additional outlay was the natural, necessary and direct consequence of the defendants’ negligence and wrong doing. Apparently the jury made some allowance for supposed needless expenditure; for the amount of the verdict does not cover the actual cost of repairs and interest. The defendants did not suffer by the indefiniteness of the instruction. If either party has cause to complain of incompleteness upon this point, it is the plaintiff. The instruction was in the main correct. Freedom v. Weed, 40 Maine, 383. Andover v. Sutton, 12 Metc., 182. The motion to set aside the verdict was vigorously pressed in argument. But we are not satisfied that the verdict was wrong.Manifestly it does not come within the rule so often enunciated respecting the setting aside of verdicts as against evidence. The act of the defendants in entirely closing np the roomy western channel of what in times of freshet is a rough, rapid and powerful torrent, resulted in the demolition of the plaintiffs’ bridge and abutment, the sufficiency of which, if .the water had been left to follow its natural course and fiow, had been well tested and — 465 — established in a freshet occurring before the defendants changed the course of the stream by their embankment, nearly if not quite as high and dangerous as the one in question. We are inclined to think with the jury that the real, true, efficient cause of the mischief — to all legal intents and purposes the sole cause — was this act of the defendants, done withont reasonable care and forethought as to the probable results. The defendants must abide the consequences. Motion and exceptions overruled. Appleton, O. J., Walton, Daneorth, Virgin and Peters, JJ., concurred.