Whiteside v. Collier

Mb. Presiding Justice Worthington delivered the opinion of the court. Error is assigned for giving improper instructions for plaintiffs and for refusing proper instructions asked by defendants. The abstract shows seven reasons submitted by appellants, in writing, to support their motion to set aside verdict and for new trial. Humbers three and four of these reasons as abstracted, are, respectively, for giving improper instructions for plaintiff, and for refusing proper instructions asked by defendant. Counsel for appellee charge that said reasons, numbered three and four, were not in the written motion for new trial, and that they are wrongly interpolated in the abstract. The record sustains the charge. They do not appear in the bill of exceptions. Hot having been presented to the trial judge in appellant’s written motion, they are not before this court for consideration on appeal. R. R. Co. v. McMath, 91 Ill. 104; World’s Columbian Ex. v. Bell, 76 Ill. App. 596; Emory v. Addis, 71 Ill. 277; Jones v. Jones, 71 Ill. 562. It is urged that the court erred in rejecting testimony to show the respective acres drained by Hill’s branch and by the lake branch. It was not material error to exclude such evidence. Appellant had the benefit of the testimony of witnesses called by him as to which of the streams caused the overflow of appellees’ land. The acreage drained by each was not material to this issue. It is urged that there can be no recovery because if there •was negligence in building or maintaining the dam, which caused it to give way, the evidence does not show what that negligence was, or what was the cause of it giving way. There are no written pleadings in the case, it being an appeal from a justice. There is therefore no variance. It is not denied that the dam gave way. The presumption is, then, that it was not maintained as it should have been. It was built for appellants’ sole profit, and it was their duty to maintain it so that others would not be injured by it. Their right of recovery does not depend upon their ability to specify or prove what mistake or insufficiency in the construction of the dam caused it to give way. It does, however, appear in evidence that there were cracks running lengthwise at the top of the bank, which appellant was endeavoring to close before the dam gave way. Cletcher testifies: “We were at work on the dam and when the water got in these cracks we could not keep it out; then it began to give way.” The jury were warranted, in the absence of evidence to the contrary, in concluding that if these cracks were not there the dam would not have been washed out. How long they had been there does not appear. From a review of the whole evidence, we think that the verdict is sustained by the evidence. Judgment affirmed.