(19 Idaho, 355)

TEETER V. NAMPA & MERIDIAN
IRR. DIST.

(Supreme Court of Idaho. Feb. 18, 1911.
tion for Rehearing March 17, 1911.)

Peti

(Syllabus by the Court.) WATERS AND WATER COURSES (§ 171*)-SURFACE WATER-DIVERSION.

In the winter and early spring months flood waters gather from time to time in several draws or basins above respondent's lands and flow down across appellant's canal, and over and upon the lands of the respondent, in large volumes. The irrigation district, in order to prevent these flood waters washing out the banks of its canal and breaking down the canal, built a spillway 16 feet wide in the bank of the canal on the lower side, and, when the flood waters come, opens the spillway and allows the entire volume of water to run through and upon the lands of respondent. It appears that in the natural flow of water down these draws and drainage basins, it runs in several channels and spreads out over the lands of the respondent. Held, that the irrigation district cannot collect the waters and pour them out through one spillway in one volume onto the lands of the respondent so as to increase the damage done to his lands, but that, on the contrary, the district must, if it desires to collect the waters and turn them through spillways, so distribute the waters as to allow them to flow over the respondent's land in as nearly the same manner and proportion as they would in their natural state, and in such manner as to do no greater damage than they would inflict on respondent in their usual and ordinary flow. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 216-222; Dec. Dig. § 171.*]

Appeal from District Court, Ada County; Fremont Wood, Judge.

Action by W. B. Teeter against the Nampa & Meridian Irrigation District. Judgment for plaintiff, and defendant appeals. Remanded, with instructions to modify the judgment on rehearing.

Hugh E. McElroy and C. E. Winstead, for appellant. G. G. Adams, for respondent.

AILSHIE, J. This action was instituted by the plaintiff for the purpose of securing judgment restraining and enjoining the defendant, the Nampa & Meridian Irrigation District, from maintaining a spillway in its canal and from using the same to turn out flood waters so as to flow over and across the plaintiff's land. The court heard the proofs and rendered and entered judgment in favor of the plaintiff, enjoining and restraining defendant from maintaining the spillway as the same had been constructed in its canal, and from turning out the waters onto the lands of the plaintiff.

or natural drainage basins, the principal ones of which are designated as Five-Mile, SevenMile, Eight-Mile, and Ten-Mile creeks.. It appears that in the winter and early spring, from January to March, more or less flood water comes down these draws from the higher lands and flows over and across plaintiff's land. The volume of water flowing down these draws varies according to the amount of snowfall and the rapidity of the break-up or thaw-out in the early spring, and is also governed by the amount of rainfall during these months. The flood of waters coming down these draws is sometimes of a very short duration, lasting only an hour or two. It seems that the water comes down these several drainage basins, and when not controlled in any way spreads out over the lands of the plaintiff without doing any considerable damage. It appears that these floods have generally had a disastrous effect on the defendant's canal, washing away the banks thereof and breaking down the canal for some distance. The defendant company conceived the idea of gathering the waters in the canal by having the banks on the lower side higher than those on the upper side, and letting it all out at one place by means of a spillway, which it constructed, 16 feet wide. This resulted in pouring the water out in one volume through the spillway onto the plaintiff's premises, and it was for the purpose of restraining and enjoining this action and the maintenance of the spillway for this purpose that the present suit was instituted.

The appellant company contends that all the flood waters coming down these draws or basins has been accustomed in its natural, course to flow over and across the plaintiff's lands, and that the appellant has in no way increased the volume or caused any more water to flow over the lands of the respondent than has usually flowed across those lands, and that it is therefore not responsible and should not be enjoined from maintaining its spillway in the bank of its canal. The respondent contends, on the other hand, that the waters in their natural flow came down at least three different channels, and spread out over the lands, so that they did no material damage to his farm, and that the injury and damage done him by the appellant consists in its collecting the waters from these several channels into the canal, and then letting them all out at one place through the spillway; that by so doing the waters were poured out on his lands in one great torrent, thus washing out and cutting channels in his land, and thereby doing him much damage.

Plaintiff owns a farm in what is known as Eight-Mile Bottom in the Boise Valley. The defendant is the owner of what is commonly There can be no doubt but that the appelknown as the Ridenbaugh Canal. This canal lant is under no obligation to collect these runs along and by respondent's lands on the flood waters and carry them off through its east side thereof; the canal being above the canal. It cannot be expected or required to lands on the upper or higher lands. In this do so. The natural flood waters which gathlocality the canal crosses a series of draws er in these draws and basins must necessari

tail upon the respondent the minimum of damage, and not increase the dangers and damages over that caused by the flow of the waters in their natural course."

AILSHIE, P. J., concurs.

ly flow down over the respondent's land. It is clearly shown that the canal has not sufficient capacity to carry off these waters. The respondent, on the other hand, has a right to insist that they come down in their This is precisely what the judgment of the natural channels, or in such manner as not court below would not permit the appellant to augment the dangers and damages which to do. The conclusion of this court in said they would ordinarily entail upon respond-opinion will be modified to this effect: That ent's land. If the appellant desires to col- the cause will be remanded, with instruclect these flood waters in its canal and let tions to the trial court to modify its former them out through spillways, it may undoubt- judgment in conformity with the views exedly do so. But it must so distribute them pressed in the opinion. as to cause them to flow down over respondent's lands in the accustomed channels, and at such places and in such manner as to distribute the waters in like manner and volume as they were accustomed to flow in their natural course, and thereby entail upon the respondent the minimum of damage, and not increase the dangers and damages over that caused by the flow of the waters in their natural course. This is clearly just and equi-1. table as between the canal owner and the landowner. Each must recognize and respect the rights of the other, and at the same time each is entitled to the fair and reasonable enjoyment of his own property. The appellant should not be allowed to collect the entire volume of water and turn it out through one spillway, and thereby increase the bur-2. den, dangers, and damages such waters will cause to the respondent's lands.

The judgment should be affirmed, and it is so ordered. Costs awarded in favor of the respondent.

(19 Idaho, 390)

MAW v. COAST LUMBER CO. (Supreme Court of Idaho. Feb. 24, 1911.)

(Official Syllabus.)

APPEAL AND ERROR (§ 874*)-REVIEW-OR

DER DENYING NEW TRIAL.

An objection that the complaint does not state facts sufficient to constitute a cause of action cannot be reviewed upon an appeal from an Naylor v. Lewiston, etc., Ry. Co., 14 Idaho, order denying a motion for a new trial-citing 789, 96 Pac. 573.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3478; Dec. Dig. § 874.*] APPEAL AND ERROR (§ 197*)—EXCEPTIONS— NECESSITY.

Sections 4225, 4226, Rev. Codes, empower ant who during the trial or at the conclusion the district court to afford relief to a defendthereof contends that he has been misled by the allegations of the complaint, and such relief should be sought in that forum. If the lower court denies such relief, an exception may be

STEWART, C. J., and BUDGE, District duly saved, and the defendant will then be in a Judge, concur.

Petition for Rehearing.

SULLIVAN, J. A petition for rehearing has been filed in this case.

In the opinion heretofore filed it appears that the judgment of the court below was affirmed. On a re-examination of the mat

position to present the matter on appeal. The question cannot be raised for the first time on appeal-citing West v. Johnson, 15 Idaho, 681, 99 Pac. 709, and Crowley v. Croesus Gold, etc., Co., 12 Idaho, 530, 86 Pac. 536.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 197;* Pleading, Cent. Dig. §§ 1428-1441.]

3. MASTER AND SERVANT (§ 209*)—ASSUMPTION OF RISK.

or employment assumes the risk incident to such A servant or employé in accepting a service employment only when the employer furnishes a reasonably safe place and reasonably safe machinery and appliances with which to perform defective machinery or appliances is not a risk his work. A risk which arises from the use of incident to the employment.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 552; Dec. Dig. § 209.*] 4. MASTER AND SERVANT (§ 223*)-AssumpTION OF RISK.

ter, we find that this court held that appellant was entitled to maintain and use the spillway in controversy for the purpose of delivering onto the land of respondent in the channel in which said spillway is situated the natural flood water coming down said channel, and in said opinion Mr. Justice AILSHIE, speaking for the court, said: "The appellant is under no obligation to collect these flood waters and carry them off through its canal. * * * If the appellant desires to collect these flood waters in its canal and let them out through spillways, it may un-in question was different in its general construcdoubtedly do so. But it must so distribute them as to cause them to flow down over respondent's lands in the accustomed channels, and at such places and in such manner as to distribute the waters in like manner and volume as they were accustomed to flow in their natural course, and thereby en

Where in an action for damages for perfective machinery, it appears that the machinery sonal injury alleged to have been caused by de

tion from machinery of a similar character inquire greater care in its operation, attended stalled in defendant's factory, that it would rewith greater hazard, that it was unsafe in operation, and that this was known to the defendant, dinary care on the part of the defendant comor could have been ascertained by the use of orknowledge of the danger and assumed the risk pany or its agents, the plea that plaintiff had

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

In an action for damages for personal injury occasioned by the use of machinery alleged to have been defective, the questions as to whether such machinery when installed was de-ganized and existing under the laws of the fective, as to whether when in operation it endangered the safety of the employés of the defendant company, and whether such company or its officers had knowledge of such defects in the machinery, and the danger incident to its operation, or whether the plaintiff must have known of such defects, are all questions of fact for the jury to determine, and are properly submitted

7. MASTER AND SERVANT (§ 286*) - NEGLIGENCE OF MASTER-QUESTIONS OF LAW AND FACT. In an action for damages for personal injuster in and about the woodworking estabjury arising from the operation of machinery, if different conclusions might reasonably be arrived at as to whether there was negligence on the part of the defendant company, then the question is one of fact, to be submitted to the jury under proper instructions; but, if only one conclusion is deducible from the facts, the question becomes purely a question of law. Wheeler v. O. R. & N. Co.. 16 Idaho, 375, 102 Pac. 347, approved and followed.

etc. The plaintiff further alleges that prior | ber described in plaintiff's complaint, which to the accident he was healthy, active, and was being sawed in said ripsawing machine, able-bodied; that by reason of the injuries was hurled with great force, or any force at so received he was and still is subject to all, against the plaintiff; denies the illness great pain and suffering, and totally incapac- of the plaintiff, and also denies that the itated from doing any work, and will always plaintiff incurred an expense of $500, or any be a cripple and dependent upon others for other amount, or that he was permanently care, support, and maintenance; and the injured, or that he suffered any disabilities, plaintiff seeks to recover damages in the sum or that prior to the accident the plaintiff was of $15,000. a healthy, active, and able-bodied man; denies that the plaintiff was subject to great pain and suffering, or any pain or suffering; denies that the plaintiff would not again be able to work, or that he would always be a cripple, and dependent upon others for support and maintenance; and denies that he had suffered damages in the sum of $15,000, or any other sum.

And the defendant, as a further and separate defense to plaintiff's alleged cause of action, alleges that "a planing mill and sash and door factory, and machinery, tools, and appliances used in connection therewith, and especially ripsawing machines, by reason of their nature, and in order to accomplish the work designed and intended, is at all times a dangerous place, and is obviously dangerous, and its dangerous character is apparent to every prudent person of ordinary intelligence, whether experienced or not in working in and around a planing mill and sash and door factory, and the machinery, tools, and appliances used in connection therewith"; alleges that plaintiff well knew, prior to his beginning work for defendant in and about its planing mill and sash and door factory, and in and around its machinery, tools, and appliances used in connection with said planing mill and sash and door factory, of the dangers attendant and incident to and upon said employment; and the defendant alleges that plaintiff was inform

An answer was filed by the defendant to this complaint, admitting the incorporation of the company, and that it was engaged in the business of retailing lumber and operating in Boise a planing mill, sash, and door factory, and general woodworking establishment, and that it employed men and machinery in operating its plant, and admitting that on November 14, 1907, the plaintiff was in its employment in the capacity as alleged by the plaintiff; but denying that while so in the employment of the defendant, or at any time or at all, the defendant, disregarding its duty to furnish safe and reliable tools, machinery, and appliances, negligently, carelessly, or otherwise or at all furnished a defective, unsafe, and insecure ripsawing machine, and in this connection the defendant alleges that the ripsawing machine furnished and equipped by defendant in its mill at Boise City, Idaho, was a modern and up to date machine, and of similar character and construction as ripsawing machines in general and common use in other planing mills and sash and door factories, and that the same was securely and safely equipped, maintained, fastened, and operated; denies that the defendant well knew that said ripsawing machine was of a defective, unsafe, and insecure character in any respect; and upon information and belief denies that the plaintiff did not know and had not the means of knowing as to the condition of said ripsaw-ed by defendant's agent of the dangerous ing machine. The defendant denies that on the date mentioned in the plaintiff's amended complaint, and while plaintiff as employé of the defendant was pursuing his said employment in and about the said mill, a piece of timber about four inches square and six feet in length, or of any dimensions, which was being sawed in said ripsawing machine, was caught by the saw and hurled with great force, or any force at all, against the plaintiff; denies that by reason of the defective, unsafe, and insecure construction of said ripsawing machine, or for any other reason or at all, said piece of timber above described was caught by said saw and hurled with great force, or any force at all, against the plaintiff; denies that by reason of the insufficiency of the supports upon which said ripsawing machine, table, and machine rested, or by reason of said saw being fixed at so great a distance from the operator as to render its operation unsafe, or by reason of the great length and unsafe fastening of the shaft upon which said saw revolved, or by any other reason or at all, a piece of tim

character incident to said employment, and that the dangers, hazard, and likelihood and exposure to said injuries complained of were among the risks ordinarily incident to work in and about and upon planing mills and sash and door factories, and machinery, tools, and appliances used in connection therewith, as the plaintiff well knew, and were assumed by said plaintiff when he accepted said employment, and that he represented himself as competent and experienced enough to perform work in, about, upon, and around said planing mill and sash and door factory.

As a further defense to plaintiff's alleged cause of action, the defendant alleges that at the time of the supposed accident and injury to the plaintiff he was in the service and employment of the defendant by virtue of a contract between them as saw filer, tool sharpener, and adjuster in and about the woodworking establishment and mill and factory of the defendant; that there was then and there employed in and about the said woodworking establishment and mill and

factory various other employés, to wit, saw-and the proof submitted at the trial. Section yers, planers, and woodworkers; that the 4225, Rev. Codes, provides that "no variance plaintiff and said other employés were em- between the allegation in a pleading and the ployed by and acting for the defendant in proof is to be deemed material, unless it has running, maintaining, and operating said actually misled the adverse party to his prejwoodworking establishment, mill, and fac- udice in maintaining his action or defense uptory of the defendant, and were then and on the merits. Whenever it appears that the there servants of this defendant in that be- party has so been misled, the court may orhalf, and in one and the same line of em- der the pleading to be amended, upon such ployment as the plaintiff, and that in the se- terms as may be just." Section 4226 prolection and employment of this plaintiff's co- vides that "where the variance is not mateemployés the defendant had used due and rial, as provided in the last section, the court. reasonable care and caution, and that said co- may direct the fact to be found according to employés were competent and prudent persons the evidence, or may order an immediate in their respective positions, and defendant amendment, without costs." In the case of alleges that the supposed negligence and care- West v. Johnson, 15 Idaho, 681-687, 99 Pac. lessness of the defendant, or any such negli- 709, this court held that any uncertainty or gence and carelessness by means of which ambiguity found in the complaint as to the the said accident and injury happened to the causes or grounds upon which the plaintiff plaintiff, was that of his said coemployés, or sought to recover damages could not be raisone or some of them, in said woodworking es-ed for the first time on appeal, but that that tablishment, mill, and factory of defendant, question should have been raised by special and not of defendant. demurrer, and an exception duly saved. See, also, Aulbach v. Dahler, 4 Idaho, 654, 43 Pac.

The cause was tried to a jury, and a verdict rendered for the plaintiff, whose dam-322. ages were assessed in the sum of $12,500. The defendant took two appeals from the judgment, which appeals were on motion dismissed. The defendant also appealed from the order denying its motion for a new trial, and it is upon this appeal that the cause is pending in this court.

This court in the case of Crowley v. Croesus Gold & Copper Mining Company, 12 Idaho, 530, 86 Pac. 536, laid down the rule that it would not stop to determine the merits of the contention that the complaint did not state facts sufficient to constitute a cause of action, where defendant after demurrer overruled answered the complaint and went to trial. We are of the opinion that if the defendant found during the trial, or at the conclusion of the trial, that it had been misled by the allegations of the complaint, it should have advised the court at the time, and under the statutes above quoted the court was empowered to afford the relief which counsel for appellant seeks in this court at this time; and, if the court denied the relief, saved his exception, then the defendant would have been in a position to present the same on appeal.

The points relied upon by the appellant are: First. That the complaint does not state facts sufficient to constitute a cause of action. Second. That the complaint alleges that the defendant and appellant was negligent in furnishing unsafe and defective tools and appliances, while the evidence shows if the defendant was negligent at all, it was in furnishing an unsafe place in which to work. Third. That the verdict is contrary to the law and the facts in the case. Fourth. That the verdict is not justified by the evidence. Fifth. That under the law and the facts in the case the plaintiff was not entitled to re-bered 3, 4, 5, and 6, and discuss them as a cover, for the reason that he assumed the risk connected with his employment. Sixth. That the evidence does not disclose how the accident happened, and the verdict was founded upon speculation. Seventh. That the verdict is excessive.

With reference to the first assignment of error (to wit, the insufficiency of the complaint), this court, in the case of Naylor v. Lewiston, etc., Ry. Co., 14 Idaho, 789, 96 Pac. 573, held that an objection that the complaint does not state facts sufficient to constitute a cause of action cannot be reviewed upon an appeal from an order denying a motion for a new trial.

Counsel for appellant contends, under his second assignment of error, that the plaintiff alleged one cause of action in his complaint, while the evidence introduced during the trial tended to establish a different cause of action; in other words, that there was a vari

We will group assignments of error num

whole, for the reason that, as we view this case, there only remain the questions of the sufficiency of the evidence to justify the verdict, and whether or not as a matter of law the plaintiff assumed the risk resulting in the accident (connected with his employment), and the question of the alleged excessiveness of the verdict. We do not think that the cause of the accident disclosed by the evidence in the case could be successfully disputed. From a careful reading of the testimony it is apparent that while one Frank Douglass was operating the ripsaw testified to by the witnesses, and while in the act of passing a piece of timber through the saw, as the saw came up, it caught a piece of timber and hurled it through the air, over the head of the operator, striking the plaintiff in the back of the head, as testified to, and from which the injury resulted. The proof of these facts is clearly established, not only