The opinion
*353 ON PETITION TO REHEAR.
De Kalb county lias presented to this court a petition to rehear this cause, vacate the judgment formerly rendered, affirming- the judgment of the circuit court, and to find some additional facts. This cause was very carefully investigated and considered prior to the decision already rendered. The petition presents no new facts or phases of this controversy and this court is satisfied with its former decision.
The function of this court in jury cases is not to make findings of fact, but merely to recite evidence relied upon, either to require the submission of the issues to the jury or to support a verdict which a jury may have rendered. Anderson v. Stribling, 15 Tenn. App., 267 . Section 12 of chapter 100 of Public Acts of 1925, requiring the chancellor and the Court of Appeals to file written findings of fact, has no application to a case tried by.a jury demanded by the parties or one of them. An assignment of error in this court that the circuit judge sustained a motion for a directed verdict presents a question of law and not a question of fact, and it is not the function of this court to find the facts, but it i,s our duty to ascertain whether there were any material conflicts in the evidence, or reasonable minds might reach different conclusions from the undisputed evidence. By “material evidence” is meant the evidence material to the question in controversy, which must necessarily enter into the consideration of the controversy and by itself, or in connection with the other evidence, by determinative of the case. But a conflict of the evidence upon an additional or separate feature or fact, even though it is material, should not of itself prevent the giving of peremptory instructions. Pacts are frequently material in themselves, but become immaterial when taken in connection with other facts; so that the disputed fact must not only be material but in itself or in connection with other facts it must be determinative of the real issue and the merits of the case. Knoxville Traction Co. v. Brown, 115 Tenn., 323 , 89 S. W., 319 .
There is evidence that Caney Pork river in the vicinity of Holmes creek, about 58 miles below the dam at Rock Island, was 7 to 9 feet higher in 1929 than in 1902; that the rain pour below the dam in 1929 was less than it was in 1902; and that certain creeks which were tributaries to Caney Pork river below the Rock Island dam were lower in T929 than in 1902. But from these facts no inference could reasonably be drawn that the greater height of the flood in 1929 was du.e to improper operation of the gates of the Rock Island dam, in the face of the evidence that the rainfall above the Rock Island dam in 1929 was greater than it was in 1902 and was unprecedented in volume.
*354 There is evidence that Barren Fork river at the place where the McMinnville dam was washed out was higher in 1902 than it was in 1929; but as pointed out in our former opinion, the only conclusion that can be drawn is that the additional volume of water suddenly produced by the break in that dam had no part in the destruction of the bridge; and therefore this fact is immaterial.
The petitioner is mistaken in the averment that there is evidence that the raising or opening1 of the gates caused the rise of some 25 or 30 feet- The evidence cited in support of this statement does not bear out the statement. The rises mentioned in the testimony cited were natural rises, designated by defendant’s witnesses as the extent of the rises at the various times when the gates were opened- — ■ not rises caused by the opening of the gates. Furthermore, we have shown that it could only be concluded from the evidence that the water which was let loose through the gates at successive-times had passed this bridge at the time the damage was done late in the night of Saturday.
The question of the average stream flow of the Caney Fork river is immaterial. The material fact was the rate at which the river was flowing during this heavy flood. This is recited in our former opinion. Nor is the. difference in the way Caney Fork river rises and falls after rains since the dam v;as put in at the Rock Island site, and the way it rose and fell theretofore, of material or determinative •quality. It is not a question of the habit of the river in rising and falling during ordinary rains. The material fact is that the pool was maintained at a virtually uniform level above the dam by the operation of the gates until the flood was beyond control. We have heretofore held that the undisputed evidence showed that on the afternoon and evening of Friday the rainfall vras not of such magnitude as to cause the power company reasonably to expect that the flood would be as great as it became; and we have stated the conclusion from the undisputed evidence that had all the gates been opened on that afternoon the result would not have been any better than it -was. In other words, the same water which would have thus gone through the gates went through afterwards accordingly as the gates were raised, and as it came through it did not come all at once with the enormous volume with which it would have come had all these eighteen gates been raised at once. In our former opinion we recited that there w'as evidence that by noon on Saturday the stored-up water, which was released by on Saturday, and then remained stationary for a short time and began to rise again. At this time, at noon the water had not done damage to the bridge. We showed that it could only be concluded that by noon on Saturday the stored-up water, which was released by opening the gates, must have passed the site of the bridge. Counsel *355 seem very confidently to ask the question in their petition: “What caused this second rise if not by the opening of the gates of the dam?” Of course, as we have pointed out, it can only be concluded from these facts that what caused the second rise was the enormous natural flood which had come down the Caney Fork river and from its upper tributaries, and which rose to a height of 15 feet above the dam with all the gates open. If there was any artificial flood that was let loose by the opening of the gates, it had passed this bridge by noon on Saturday.
The purpose of the flood' gates in the dam at Rock Island is to maintain the pond level so as to protect not only the bridges and property of the power company above the dam, but also the property of the riparian owners above the dam; and the further purpose of them is so to regulate the flow of the water as to maintain a uniform pool level at the dam so that as long as the flood can be controlled no more water will go over or through the dam than comes into it. There is no evidence that the purposes of the flood gates are without regard for the rights of the riparian owners below the dam.
The petition to vacate the former judgment of this Court is denied.
Faw, P. J., and Crownover, J., concur.