#### F. D. KOONE and SHERDIE RHODES v. CAROLINA MOUNTAIN POWER CORPORATION and DUKE POWER COMPANY.

(Filed 20 March, 1940.)

Waters and Water Courses § 7 — Evidence of negligent operation of hydroelectric dam by defendant held sufficient for jury.

Evidence sustaining plaintiff’s allegations to the effect that defendant power company permitted water from several days rain to gradually accumulate back of its dam until the dam was endangered, and then suddenly opened the floodgates of the dam, resulting in the overflow of plaintiff’s lands to his damage, *is held*sufficient to be submitted to the jury in plaintiff’s action to recover for the negligent operation of the dam, and the granting of defendant’s motion to nonsuit is error.

Appeal by plaintiffs from *Ervin, Special Judge,*at September Term, 1939, of Rutherford.

Reversed.

This is an action for actionable negligence brought by plaintiffs against defendants. The plaintiffs allege damage to their land and crops by defendants negligently flooding certain lands of theirs.

Plaintiffs allege, in part: “That during the month of October, 1936, the locality in which plaintiffs’ land and defendants’ dam (Lake Lure *287Dam) is located was visited by several days of rain, sucb as a man of ordinary care and prudence could reasonably expect and anticipate in said locality; tbat said rains caused tbe waters flowing in tbe natural channel of said Broad River to become considerably swollen; tbat during tbis rainy season defendants, for tbeir own benefit and profit, negligently and unlawfully allowed tbe water from said rains to gradually accumulate in tbeir pond or reservoir above said dam until tbe waters therein bad risen to tbe crest of and was flowing-over a portion of said dam so tbat said dam was about to be -suddenly swept away. Tbat on tbe . day of October, 1936, the defendants, after negligently and unlawfully allowing said waters to accumulate in said pond or reservoir, as herein-before alleged, and in order to protect said dam and power bouse, did wrongfully, negligently and unlawfully, and in utter disregard of tbe rights of these plaintiffs and other riparian owners below said dam, and in a negligent manner, open tbe floodgates of said dam, thereby releasing great volumes of water from tbeir said large lake, adding said great volumes of water to tbe already swollen condition of tbe stream below said dam; tbat tbe said water, so released, rapidly accelerated tbe flow of said stream below said dam; and added sucb large volumes of water thereto as to cause tbe stream to overflow plaintiffs’ land with water and mud and other debris carried therein and greatly damaged said land and destroyed tbe crops thereon; tbat tbe releasing of said water, as hereinbefore alleged, so augmented tbe flow of tbe stream as to cause said stream to rush over plaintiffs’ lands with sucb force and velocity as to cover said land and said crops with mud, silt and sands, greatly damaging a portion thereof and absolutely destroying a portion thereof. . . . Such damages were proximately caused by tbe negligence and wrongful and unlawful conduct of tbe defendants, as hereinbefore alleged.”

All allegations of plaintiffs as to tbe negligence of defendants were denied by defendants, and tbe answering defendants further allege tbat “Any damages sustained at tbe times referred to in tbe complaint were caused by tbe heavy and excessive rains and flood conditions which then occurred in tbe vicinity of said lands.”

From a judgment of nonsuit plaintiffs excepted, assigned error, and appealed to tbe Supreme Court.

*McRorie & McRorie, Edward A. Morgan, Paul J. Story, Oscar J. Mooneyham, O. 0. Ridings, and Jordan & Horner for ‘plaintiffs.*

*Edwards & Edwards, Hamrick & Hamrick, C. W. Tillett, W. S. O’B. Rohinson, and J. H. Marion for defendants.*

Clarkson, J.

At tbe close of plaintiffs’ evidence tbe defendants made a motion in tbe court below for judgment of nonsuit. C. S., 567. Tbe *288court below sustained tbe motion and in tbis we think there was error. "We think the evidence and the reasonable inference to be drawn therefrom sustained the allegations of the complaint and were sufficient to be submitted to a jury. "We do not set forth the evidence as the matter is to be heard again. The facts in like cases, and the law arising thereon, have been fully set out in the following cases: *Lumber Co. v. Power Co.,*206 N. C., 515; *Dunlap v. Power Co.,*212 N. C., 814; *Bruton v. Light Co., ante,*1. In the *Bruton case, supra,*the facts were not sufficient to be submitted to a jury and a nonsuit was sustained. In the present action the evidence is sufficient to be submitted to a jury.

The judgment of the court below is

Reversed.