DEPARTMENT No. 2. [Filed December 24, 1880.] SAMUEL B. CHIDESTER, RESPONDENT, VS. THE CONSOLIDATED PEOPLE'S DITCH COMPANY, APPELLANT. DAMAGE BY OVERFLOW OF IRRIGATING CANAL-NEGLIGENCE IN NOT REMOVING ACCUMULATED SAND-WHAT IS "ACT OF GOD." If the accumulation of sand in any irrigating ditch is such as to render it probable that the periodical winter overflow will wash out the sand and thus damage neighboring private lands, it is the duty of the ditch owners to remove the sand and prevent damage from that source; and if they fail to do so, it cannot be said that the damage is caused by "act of God" entirely without the intervention of man, so as to constitute a defense to an action for such damage. NEGLIGENCE-FAILURE TO CONTROL CAUSE OF INJURY-INSTRUCTION TO JUry. Where in an action for damages, caused by the winter overflow of an irrigating ditch, in carrying accumulated sand from the ditch over neighboring lands, the Court instructed the jury that "negligence is not simply in originating the mischief, for this may be a lawful act, but in not controlling it when put in operation:" Held, that the meaning was, that negligence is not simply in originating that which may be the cause of mischief or injury, but that it consists also in failing to control this cause, so as to prevent it from inflicting injury; and that there was no error in it prejudicial to defendant. EXCLUSION OF PROPER TESTIMONY, AFTERWARDS ADMITTED, NOT PREJUDICIAL ERROR. Where proper questions to witnesses were excluded by the Court, but it appeared that the witnesses afterwards substantially answered them, and that their testimony was before the jury: Held, that there was no injury caused by the ruling. Appeal from the District Court of the Thirteenth Judicial District, Tulare County. Brown & Daggett, for appellant. W. W. Cross and Atwell & Bradley, for respondent. THORNTON, J., delivered the opinion of the Court: This action was brought to recover damages caused by the neglect of the defendant to keep a ditch owned by it in proper repair, so that the waters thereof overflowed its banks, flowed over plaintiff's lands, cutting channels and sloughs through the same and depositing therein large quantities of crude sand, destroying plaintiff's crops and grasses, and washing away his fences. The complaint contains three counts. They are substantially the same except as to the periods of the alleged negligence. In the first count, the averments set forth a neglect as above stated from the twenty-fourth of November, 1873, to the fifteenth of July, 1874, in the second from about the twenty-fourth of November, 1874, to about the fifteenth of July, 1875, and in the third from about the fifteenth of November, 1875, to about the fifteenth of July, 1876. The allegations of the complaint above referred to were denied by the answer. The cause was tried before a jury, who rendered a verdict for the plaintiff in the sum of $340. Judgment was entered on the verdict. From this judgment defendant appealed, assigning sundry errors in the rulings of the Court in admitting or excluding testimony, in giving and refusing instructions, and further claiming that the evidence is insufficient to justify the verdict. These errors are all specified in a bill of exceptions embodied in the transcript. The evidence was such that it was proper to submit the case in some of its aspects to the jury. If there was a substantial conflict on these aspects of the cause, the judgment should not be reversed for insufficiency of the evidence to justify the verdict. The phase which the cause assumed, rendering its submission proper, is that regarding the alleged negligence of the defendant; and as negligence in many cases is a deduction from facts where there is no conflict, such deduction must be made by the triers of the facts, whether jury or Court, and when such a case presents itself and this is such an one-it would be an usurpation of power in this Court to set aside the verdict of the jury and reverse the judgment on the ground of the insufficiency of the evidence to justify the verdict, where the tribunal whose duty it is under the law to determine the result of a fair deduction from the evidence, has found that such result demonstrates negligence. The verdict would doubtless be set aside, where it may be concluded that in the judgment of reasonable men no such deduction could be drawn as that apparent from the verdict, but in no other case should this be done. In a case where reasonable men might upon deliberation differ in their conclusions, it would be improper for this Court to interfere with the verdict on the ground on which it is asked to do so in this case. Such a deduction from facts previously determined, must be based upon the experience and observation of the triers, and the experience and observation of this Court ought not to be substituted for that of the jury. (See Fernandez vs. Sacramento C. R. R. Co., 52 Cal. 45; Shafter vs. Evans, 53 Id. 32; N. E. Glass Co. vs. Lowell, 7 Cush. 321.) The action is based on the alleged negligence of defend ant. Such negligence, to be actionable, must rest on a breach of an obligation or duty imposed on the party complained of. The obligation or duty is devolved by law on all men to use their unimpeached legal rights so as not to injure others. It is beyond the power of the judiciary or any other tribunal or officer known to our laws, to compel the special performance of this duty; but Courts may indirectly compel it by condemning in damages the erring party, and redress the injury done in the particular case by a judgment for damages in money, which can be enforced against the property of the delinquent. In the exercise of the powers committed to them Courts must investigate and define the limits of the duty disregarded or broken, and the extent of its infraction. Such is the limitation of the main inquiry in each case submitted for determination. The general canon of the law is simple enough; the matter of difficulty is encountered in the application of the rule-in defining and limiting the duty or obligation, and in marking the extent of its infringement. No one is responsible for that which is merely the act of God, or inevitable accident. But when human agency is combined with it, and neglect occurs in the employment of such agency, a liability for damage results from such neglect. Such is the rule laid down and applied in Polack vs. Pioche, 35 Cal. 416: "The expression" (the expression referred to is that comprised in the words, "act of God") "excludes the idea of human agency, and if it appears that a given loss has happened in any way through the intervention of man, it cannot be held to have been the act of God, but must be regarded as the act of man." (35 Cal. 423, per Sanderson, J., delivering the opinion of the Court. See cases cited in the opinion; Wharton on Negligence, 22 553, 559, and cases cited; Broom's Legal Maxims, "Actus Die nemine facit injuriam," pages 227-8.) The learned author just referred to states the rule thus: "The act of God signifies, in legal phraseology, any inevitable accident occurring without the intervention of man, and may, indeed, be considered to mean something in opposition to the act of man, as storms, tempests, and lightning. The above maxim may, therefore, be paraphrased and explained as follows: It would be unreasonable that those things which are inevitable by the act of God, which no industry can avoid, nor policy prevent, should be construed to the prejudice of any person in whom there has been no laches." (Broom's L. M., pages 227-8.) In the case under consideration it is contended on behalf of defendant that the damage sued for was caused by the act of God. If this was so, no case was made out which should have gone to the jury. To this it was replied that the agency of the defendant concurred in causing the injury complained of in which defendant was negligent, and therefore it was responsible. The evidence which was submitted to the jury tended to show this state of facts: That from a period commencing with the sixth day of May, 1874, and ending on the fifteenth day of July, 1876, the defendant was the owner of a ditch or canal for conveying water, known as the People's Ditch, through which ditch defendant caused to be carried a large quantity of water; that the ditch commences at a slough known as "Lander's slough," that it runs from the point of beginning in a southwesterly direction, along an alkali ridge until it reaches a swag or depression in the surface of the land, above the tract owned by the plaintiff. This swag is from a quarter to half a mile wide; that the land of plaintiff alleged to be injured is in this depression. Lander's slough issues from a swamp, and connects with the Kaweah river by a number of small channels. The country between Lander's slough, where the ditch heads and the Kaweah, is low, with a number of small channels running through it. The Kaweah river is on the northwesterly side of the ditch, and is really connected with it by the channels through the swamp above mentioned, coming into Lander's slough, from which the ditch runs. It (the Kaweah) runs southwesterly, and is separated from the depression in which the ditch is situated by a ridge. This ridge is on an average 3 feet higher than the depression. The ditch crosses a creek called Yokohl creek above plaintiff's land, and about two miles from it. This creek spreads out about the point where it is crossed by the ditch. Above this, it has well defined banks; below, it is a low water-way extending down into plaintiff's land. Across the northwest corner of plaintiffs land runs Deep creek, about a mile west of the ditch. Outside creek runs through plaintiff's land, and is connected by a channel with Deep creek, and also with the water-way of the Yokohl. This creek (Outside) is northwest of the ditch, and not very far distant from it. These two creeks carry sand, and there was an accumulation of sand in the ditch. The injury complained of occurred in a season of high water caused by the melting of the snow on the mountains. above. The overflow so caused is periodical, and may be, and is anticipated by all persons inhabiting the region where the alleged damage occurred. The obligation rested on defendant to keep the banks of its canal in repair. It was bound to use ordinary diligence for this purpose. The diligence required, however, must be commensurate with the duty, and the duty is that ordinarily employed by a prudent business man when dealing with his own affairs under the circumstances which surround him, and call his mind and energy into action. If the accumulation of sand in the defendant's ditch was such as to render it probable that the periodical overflow would by its action wash out the sand and thus damage the land of plaintiff, it was then the duty of the defendant to use all the means which an ordinarily prudent business man would employ under the circumstances to prevent it. The sand might have been removed from the ditch and deposited where the water would not reach it during the period of overflow referred to above. Ordinary prudence would have dictated such a course to prevent injury to the property of another. As before stated, the obligation rested upon the defendant to exercise the diligence in the use and management of its ditch which a prudent man would ordinarily employ under the circumstances where his own interests were to be affected. In the light of the rules above stated, the Court committed no error in giving to the jury the instructions asked by plaintiff, and numbered four, five and eight. The Court, at the request of the plaintiff, gave the further instruction: " Negligence is not simply in originating the mischief, for this may be a lawful act, but in not controlling it when put in operation.' By this language we understand the Court to have directed the jury that negligence is not simply in originating that which may be the cause of mischief or injury, but that it consists also in failing to control this cause, so as to prevent it from inflicting injury. This, in our judgment, is the fair construction of the instruction, and in this view we cannot see that the defendant was prejudiced by its having been given. Whoever originated that which caused the injury, it became the duty of the defendant, from and after it acquired the ditch, to use the proper means to prevent this cause from producing injury to another. The instruction was correct. The defendant made several requests to instruct, some of which were given, and several refused. The refusal of the Court to instruct as asked was excepted to by defendant. We have examined the instructions and find nothing in them which would justify a reversal of the ruling of the Court. |