This was an action for damages to the plaintiff by reason of the alleged negligent construction of the defendant’s dam and the breaking thereof. The answer of the defendant was a general denial, with special defenses. No demurrer was interposed. A verdict and judgment having been rendered in favor of the plaintiff, the trial court set such verdict and judgment aside on the ground that the complaint failed to state a cause of action. The defect specified is that the complaint fails to allege that the breaking of the dam was proximately caused by or resulted from the alleged negligence of the defendant, and hence that no casual connection between the negligent act and the occurrence is set forth. The appellant claims that, though the complaint, tested by a general demurrer, be insufficient, yet, as no demurrer was interposed, and a verdict rendered in his favor, the judgment may be sustained by the doctrine of aider by verdict, especially in view of the special interrogatory No. 3, covering the point in question submitted to the jury and answered by them. Upon the question whether the omission complained of may after verdict be held to be within the reasonable intendment of the pleading, and upon the question whether under the record in this case the doctrine of aider by general or special verdict may properly be invoked, the members of the court sitting are equally divided in opinion. The judgment of the district court is therefore affirmed.
CAMPBELL, J., not sitting.