dissenting.
While the judgment of the district court must be affirmed for the want of a majority of this court to reverse it, I regret to be obliged to withhold my concurrence in the above opinion of my brother Maxwell. I find no fault with the syllabus, so far as it goes, and I agree that the weight to be given to the conflicting testimony of the professional witnesses is a matter which the law leaves with the jury, and with which this court cannot interfere, whatever might be our opinion as to the relative weight that we would accord to the testimony of such professional witnesses in a matter heard before ourselves.
But upon the trial there was evidence admitted on the part of the plaintiff therein which I think should have been *167excluded; and in overruling the objection of the defendant to such evidence, there was prejudicial error. I copy from the bill of exceptions a part of the direct testimony of W. C. Walters, a witness on the part of the plaintiff in the court below. After having testified at considerable length as to the ice gorge and overflow of 1881, the value and damage to plaintiff’s property, his examination continued as follows:
Q,. State, if you know, from personal observation how' this bridge has affected the flow of ice and water in the Platte river at other times than at the time of this particular gorge, with reference to throwing water and ice or causing gorges to throw the-ice and water out of its banks?
A. The bridge was so constructed that it was almost impassable.
Objected to by defendant’s attorney as incompetent. Objection sustained. ■
Q. State what it has done, that you have seen it do since the gorge of ’81 ?
Objected to' as incompetent by defendant’s attorney. The gentleman has repeatedly stated in the presence of the jury that during last winter and ’81 that the company was compelled to keep a gang of men at their bridge for the purpose of blowing up and removing the ice gorge, and he has stated this against our objection for. the purpose, as we say, of influencing the jury in the consideration of this case, and the statement is not supported by the evidence.
Q. Do you know whether or not at other seasons than' this particular season of ’81 gorges of ice have been forced against this particular bridge?
Objected to for the reason that it is leading. Objection overruled..
A. It has.
Q. State what are the facts in that regard, and describe the extent of the flow of the water and ice in the river?
Objected to as incompetent, for the reason that it has no *168tendency to prove the negligent construction of the road. Objection overruled. Defendant excepts.
A. In the spring of 1882 the ice gorged against the bridge.
Under the law as laid down in this case when it was before this court at a previous term, 14 Neb., 170, the only question to which the above testimony could be held to be applicable was, whether at the time of the construction of this bridge, in the year 1876, the said railway company, in planning and constructing its bridge, brought to their execution the engineering knowledge and skill ordinarily practiced in such works, and saw to the practical application of such knowledge and skill to the work in hand, among other things so as to allow of the passage of water and ice such as is known to'pass in the stream annually, or which may reasonably be expected to occur occasionally.
The law as thus laid down ought t’o have been followed by the district court in the second trial. But in the admission'of the above testimony I think that it was widely departed from and disregarded. The conduct of the river in years subsequent to the erection of the bridge could have no possible bearing upon the question of care, diligence, and skill used by the railway company in the plan and construction of the bridge in question. The plaintiff’s cause of action was complete, if ever, in 1881; hence from every point of view evidence of the conduct of the river in 1882 was wholly irrelevant and inadmissible, and I think that 'said testimony may be presumed to have been prejudicial and injurious to the plaintiff in error.
For the above reason I think that the judgment ought to be reversed and a new trial awarded.