![]() It is well settled that one is accountable if his negligence concurs with an act of God or with the negligence of a stranger in effecting damage. 2 simply stated that if an act of God be the primary cause of damage, there can be no recovery, irrespective of negligence that may have concurred with it in producing an efficient cause of damage. 3 advised that if the damage was not caused by an unavoidable accident, defendant's negligence must be the sole proximate cause of the damage to establish liability. 2 advised that if the storm were of *484 such unusual severity that it was not reasonably foreseeable, and that it was the primary cause of the flood and damage, the verdict must be for defendant and against plaintiff. Plaintiff claims error in the giving of certain instructions. The concurrence of the two effected the crop damage, in a proportion not made clear by the record. It is conceded that the rain assumed cloudburst proportions, that the pumps were operated for at least some time after the advent of the cloudburst, that the canal collapsed, and that a large volume of water from the gulley joined forces with that flowing from the collapsed canal. The jury returned a 6 to 2 verdict of no cause of action. The facts, controverted as they were, presented a jury question. Defendant claimed the rainfall was an act of God, and that the damage would have resulted irrespective of the canal's collapse. Defendant's witnesses flatly denied any exposure of the canal and testified that the pumps were stopped as soon as possible after the company learned of the unusually heavy rainfall. Plaintiff cites as negligence defendant's failure to reinforce this portion of the canal, as well as failure to stop the pumps after commencement of the unusually heavy rainstorm. Plaintiff's witnesses testified that the earthen bank abutting the canal where the latter intersected the gulley, had been washed away by a flood three years earlier, leaving the cement side of the canal exposed, unreinforced, and weakened, and that rocks and debris in the canal backed the water up, concentrating a large volume at the claimed weak spot. Water from the canal, together with water rushing down the gulley, flowed onto plaintiff's farm, causing crop damage, basis for this suit. A segment of the canal passing over a gulley, which latter was drained by a 3 foot pipe running under the canal, collapsed during the storm. A storm of unusual severity occured in 1947. Water is pumped into the canal from a river below. *483 Defendant has operated and maintained a cement canal, reinforced by earthen banks, since 1921. Plaintiff cites as error the giving and failure to give instructions hereinafter discussed. The judgment is reversed and the cause remanded for a new trial, each party to bear its own costs on appeal. This is an appeal from a judgment of the Davis County District Court entered on a no cause of action verdict. Homer Holmgren, Salt Lake City, for respondent. King, Rawlings, Wallace, Black & Roberts, Salt Lake City, for appellant.
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