Dahlgren v. Chicago, Milwaukee & Puget Sound Railway Co.

Citations

• 85 Wash. 395
• 148 P. 567

Syllabus

<p>Waters and Water Courses — Action for Obstruction — Issues and Proof — Instructions. In an action for damages for the alleged obstruction of the natural flow of “surface” waters, an instruction on “surface and other waters” is not erroneous as enlarging the scope of the issues, where it is apparent from the complaint that “surface waters” was used to designate waters coming from a large area and flowing through a natural water course which crossed their premises; since a particular statement controls a general term, in case of conflict.</p> <p>Trial — Issues and Proof — Instructions. Although the pleadings might be obscure, the court could properly base instructions on evidence admitted without objection, which was broader than the pleadings.</p> <p>Waters and Water Courses — Obstruction — Negligence —1 Instructions. An obstruction of a water course by building a railroad embankment so as to prevent the natural flow of the waters in their accustomed channel, and thereby overflow plaintiffs’ premises, is wrongful as to plaintiffs, regardless of negligence; and hence an instruction should eliminate negligence in the construction as an element of the wrong complained of.</p> <p>Same — Instructions. In an action for overflowing lands by obstructing a water course, an instruction that “the drain provided by the defendant to take care of the waters of the stream . . . must have been sufficient to take care of and dispose of the waters flowing down the stream at times of any ordinary freshet, but need not have been sufficient to provide against an unprecedented flow of high water,” is not an invasion of the province of the jury as a determination of a question of fact, but merely states the rule as to the measure of duty the law imposed upon the defendants with regard to the drain.</p> <p>Trial — Instructions—Failure to Cover Evidence — Remedy. The remedy for instructions not sufficiently full to cover the entire evidence on a particular subject is to ask for further in