Michie v. Cochran

Biely, J., delivered the opinion of the court. Two questions only are presented on this appeal: First, Did the court err in refusing to set aside the verdict of the jury on the ground that it was contrary to the law and the evidence? And second, Did it err in its instruction to the jury? All the evidence in the case has been carefully examined and considered. It establishes that the land of the appellants is much injured, and that the injury is caused by a want of proper drainage. But upon the further question, whether the insufficient drainage is the result of the failure to maintain a ditch eight feet wide and two feet deep below the surface of the ground,, exclusive of embankments, from the line of the appellants on Meadow Creek to the head of Cochran’s mill pond, in accordance with the contract of April 15, 1856, between W. T„ Early and J. Augustus Michie, of the one part, and John Cochran, of the other part, the testimony is very contradictory and conflicting. It is not possible for us to deduce from it a satisfactory conclusion that is contrary to that reached by the jury as manifested by their verdict. Certain it is that the jury had ample justification in the evidence for their verdict. It is peculiarly the province of the jury to weigh the evidence submitted to it, and” to determine from the evidence the facts which it proves; and the rule is well established by repeated decisions of this court that, when there is a conflict of evidence, this court will not set aside a verdict where the court which tried the cause and heard the witnesses concurs with the jury, and has refused a new trial. Caldwell v. Craig, 21 Gratt. 136; Brugh v. Shanks, 5 Leigh 598; [647] Grayson’s Case, 6 Gratt. 724; and Grayson v. Buchanan, 88 Va. 255. After the matters in issue had been submitted to the jury upon the evidence for their decision, the court of its own motion gave to the jury the following instruction: “ If the jury believes from the evidence that notwithstanding the fact the defendants have failed to keep open the ditch for the time alleged, yet, if from the filling up of the mill pond below the head of the old pond or from other causes, the cutting or keeping open said ditch during such time would not have drained the lands of the plaintiffs, or enabled the plaintiffs to do so, then the jury ought not to find damages resulting from the said failure, as usually given and further, there being some evidence tending to show that said pond has been filled up from causes beyond the control of said Cochran.” It was earnestly argued by the counsel for the appellants that the last clause of the instruction, “there being some evidence tending to show that said pond has been filled up from causes beyond the control of said Cochran,” vitiated it. It was claimed that this statement by the court amounted to an expression of opinion as to the weight and effect of a part of the evidence, and was consequently an invasion of the province of the jury. But it does not bear such a construction, and it is not possible to see how it could have been so understood or interpreted by the jury. It merely states that there was some evidence tending to show that the pond had been filled up from causes beyond the control of Cochran; and by the instruction the jury was, in effect, told that if it believed from the evidence that the pond had been filled up from causes beyond the control of Cochran, and that, in consequence of the filling of the pond, the cutting or keeping open the ditch in accordance with the contract of April 15, 1856, would not have drained the lands of the plaintiffs or enabled them to do so, then the jury ought not to find dam [648] ages for the plaintiff as the result of the failure to cut or keep open the ditch. By merely stating in its instruction that there “was some evidence tending to show ” that the pond had been filled up from causes beyond the control of Cochran, the court did not express or indicate any opinion as to the sufficiency of the evidence to establish that fact. It did not thereby exceed its province, nor trench upon that of the jury. That the jurors are, under the law, the judges of the weight and effect of the evidence, and its sufficiency, is not an open question; but it is equally the province of the court in giving an instruction, to judge whether there is any evi-' dence on which to base it. If there be no evidence upon which to predicate it, it is error for the court to give it, and for that error its judgment would be reversed. Norfolk, &c. R. Co. v. Neely, 91 Va. 539; Borland v. Barrett, 76 Va. 133; and Rea’s Adm’r. v. Trotter & Bro., 26 Gratt. 585. While it is safest and best to give an instruction that is asked for, if it propound the law correctly, and there is evidence tending to make out the supposed case, of however little weight the evidence may appear to the court to be entitled, or however inadequate in its opinion to make out the case supposed (Hopkins, Brother & Co. v. Richardson, 9 Gratt. 485, 496; Farish & Co. v. Riegle, 11 Gratt. 719; Early v. Garland’s Lessee, 13 Gratt. 9; and Honesty v. Com., 81 Va. 297), it is still nevertheless the duty of the court, before giving the instruction, to determine whether there is any evidence upon which it may be founded. This is in effect all that the court did. It merely expressed in the instruction itself what it was obliged to determine existed before it could properly give the instruction, that there was some evidence tending to make out the case supposed. Without going into a rehearsal of the testimony, it is sufficient to say that the record discloses that there was evidence [649] “before the jury tending to prove that the filling up of the mill pond was due to causes beyond the control of Cochran, and that, in consequence of the filling up of the pond, the nutting or keeping open the ditch in accordance with the ■contract of April 15,1856, would not have drained the lands of the plaintiffs, or enabled them to do so. And there being evidence tending to prove this, the court did not err in assigning as a reason to justify its action in giving the instruction that there was some evidence tending to prove that the pond was filled up by causes beyond the control of Cochran. Our conclusion is that the instruction is not subject to any legal exception. There is no error in the decree appealed from, and the same must be affirmed. Affirmed.