Radburn v. Fir Tree Lumber Co.

Citations

• 83 Wash. 643
• 145 P. 632
• 1915 Wash. LEXIS 726

Syllabus

<p>Waters and Water Courses — Obstruction—Action por Damages —Instructions. In an action for obstructing a stream and overflowing plaintiff’s lands, damaging the crops, in which there was evidence of an abnormal rainfall at the time in question, it is error to refuse to give a requested instruction to the effect that, if the jury found that plaintiff’s crops had been damaged by rain as well as by defendant’s acts, the defendant would only be liable for such part of the damage as was caused by his acts.</p> <p>Appeal — -Review—Harmless Error- — Instructions. An erroneous instruction upon an issue as to the partial liability of defendant on the theory of concurrent causes of the damage, is not cured by an instruction upon his nonliability upon the theory of a sole cause for which defendant was not liable at all.</p> <p>Waters and Water Courses- — Obstruction—Liability—Unprecedented • Events — Instructions. While a riparian proprietor, in backing up the waters of a stream so as to cover his own land, is not bound to anticipate unprecedented rainfalls or such as has not occurred within the memory of man, he is not entitled to an instruction to cover his nonliability in such event where the evidence tended to show that the rainfall for the month in question was greater in 1900 than in 1912, the year in question, neither of which could be said to be, as a matter of law, unprecedented or even extraordinary.</p> <p>Trial — Exceptions—Time op Taking Exceptions. The purpose of Rem. & Bal. Code, § 339, providing that a party, at any time before the hearing of a motion for new trial, may except to the instructions or any part thereof, being to allow the court to correct error at the time of passing on a motion for a new trial, exceptions to the refusal to give instructions may be taken at the same time and in the same way.</p>