Akin v. St. Croix Lumber Co.

COLLINS, J. The defendant, a corporation, had for a number of years prior to the bringing of this action maintained and operated a system of reservoir dams on Willow river, in this state; the object being to raise and accumulate water, and then to use these accumulations for log-driving purposes. Plaintiff’s land is on the river, some eight miles above one of these dams, and about twenty miles below another; and he brought this action to recover damages said to have resulted from flooding of his premises by reason of the negligent operation and management of these two dams in [120] the spring of 1901, while defendant was driving a large and unusual quantity of logs. The verdict was for plaintiff. 1. We have made a careful examination of the large amount of evidence contained in the record, and have come to the conclusion that on the facts, as shown, the verdict could and should be uphold. But we do not sustain the contention of plaintiff’s counsel that the evidence was overwhelmingly in favor of his client, for our impression is that it preponderated the other way. However, in view of the fact that a new trial must be had for an error of law, we need not state our reasons for this opinion. This disposes of the first assignment of error. 2. We see no error in the ruling of the court to which the second assignment is directed, and no discussion thereof is needed. 3. The third assignment is addressed to certain testimony which the court below allowed to be given by a witness named Armstrong, by profession a civil engineer, who also had considerable knowledge of, and practical experience with, hydraulics. Counsel for plaintiff propounded to this witness certain interrogatories which called for expert opinions, and to these defendant objected; the objection in each case being overruled by the court. The witness had already testified that, if Willow river was clear and free from obstacles of every kind, there would, in all probability, be no overflow of plaintiff’s land at any time. The witness was then asked the following question: “Now, it is in testimony here that on or about the 26th, 27th, or 28th days of June,' — it does not matter when, I suppose, — that the water from this river overflowed the garden and grounds of Mr. Akin. You have already testified that it would not have done so in a natural state. I now ask you what, in your judgment, had producéd that overflow?” We are compelled to agree with counsel for the defendant that the witness had not shown himself qualified to answer such a question, and, further, that it assumed a state of facts which had not been established by the evidence. The witness had not testified that there would be no overflow of plaintiff’s land in its -natural state or condition. His testimony was to this effect if the river had a clear channel; but whether or not there was a clear [121] channel, or whether or not there were natural obstructions, had not been shown. It did not appear that the witness had examined the river below the plaintiff’s land with a view to ascertaining what obstructions there were, and it did not appear that he had ever been above that point. He knew nothing about the conditions, natural or artificial, nothing about the management of the dams, nothing about the overflow complained of, except as he had been told by others. Nor was the matter one for expert testimony. It was for the jury to determine what produced the overflow" or flooding complained of, from the facts presented, and no expert knowledge was necessary or proper. A man of ordinary intelligence, generally, would be just as competent to form opinions and draw inferences from the facts shown concerning the overflow as would this witness. And when the conditions were shown to the jury, they were as competent as the witness to form an opinion as to what produced the overflow. For this reason, an expert opinion was inadmissible. It may be urged that the answer to this question was not directly responsive, but we think, from previous questions and answers, that the witness understood what counsel was aiming at; and,.although he did not answer the objectionable question directly, he certainly answered it in a very material manner. In view of the number of questions asked this witness as an expert, and much more confused and involved than was this, and his answers, all of which led up to the question we- have quoted, we are of the opinion that it cannot be held that the ruling of the court on this particular question was error without prejudice. Order reversed and new trial granted.