Chicago, Rock Island & Pacific R. Co. v. Goodson

• Decision Date: 22 April 1957
• Docket Number: No. 16263.,16263.
• Citation: 242 F.2d 203
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant, v. E. D. GOODSON and Trinity Universal Insurance Company, Intervener, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

242 F.2d 203 (1957)

CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant, v. E. D. GOODSON and Trinity Universal Insurance Company, Intervener, Appellees.

No. 16263.

United States Court of Appeals Fifth Circuit.

March 14, 1957.

Rehearing Denied April 22, 1957.

R. A. Wilson, Amarillo, Tex., Joe E. Gracey, Thompson, Walker, Smith & Shannon, Fort Worth, Tex., Underwood, Wilson, Sutton, Heare & Boyce, Amarillo, Tex., for appellant.

J. O. Fitzjarrald, Joe Harlan, Dean Dunlap, Merchant & Fitzjarrald, Amarillo, Tex., for appellee, E. D. Goodson.

Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Tex., for appellee, Trinity Universal Insurance Co., intervener.

Before RIVES, TUTTLE and JONES, Circuit Judges.

TUTTLE, Circuit Judge.

This appeal results from a judgment in favor of appellee Goodson, plaintiff in a personal injury suit, based on a jury verdict in his favor. Jurisdiction is founded on diversity and the jurisdictional amount was alleged.

Goodson suffered personal injuries when there was an explosion on the premises of his employer, Palo Duro Ice Company. He alleged that the explosion was brought about in the following manner: About thirty feet away from the building of the ice company the railroad company had constructed its railroad track in and along the alley north of the ice company plant without placing therein or properly maintaining sufficient culverts or sluices as the "natural lay of the land" required, and as a result water backed into the company's premises, overflowed a pit in which there was an accumulation of some ten gallons of oil and brought the oil into contact with a hot exhaust pipe, which ignited it.

With but a single exception appellant does not contend that there was not ample evidence from which the jury could find all of these facts to exist, and we turn, therefore, to the one fact which appellant contends was not proven: that the "lay of the land" at the time of construction required a more adequate drainage system than was provided.

Appellant's principal attack on the action of the trial court is that there can be no breach of duty shown as against it unless the drainage requirements be considered as of the time of construction, as determined by the "lay of the land" at that time; since the record here is silent as to this important factor, the trial court should have directed a verdict in appellant's favor. The Texas statute provides:

"In no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires, for the necessary draining thereof." Art. 6328, Revised Civil Statutes of Texas.

"It shall hereafter be unlawful for any person, firm or private corporation to divert the natural flow of the surface waters in this State or to permit a diversion thereof caused by him to continue after the passage of this Act or to impound such waters, or to permit the impounding thereof caused by him to continue after the passage of this Act in such manner as to damage the property of another, by the overflow of such water so diverted or impounded, and that in all such cases the injured party shall have remedies, both at law and in equity, including damages occasioned thereby, * * *." Art. 7589a, Revised Civil Statutes of Texas.

Both parties treat the case as alleging violation of the railroad's statutory duty. Under such circumstances negligence need not be proved. 35 Tex.Jur., Railroads, § 129, and cases there cited.

The nature of the statutory duty has been frequently stated by the Texas courts. There can be no question but that it goes so far as to require that a railroad company, when it builds an embankment, make adequate provision to make certain that the natural flow of surface water is not interfered with.

"The purpose of article 4436, Rev. St.1895 Vernon\'s Ann.Civ.St. art. 6328, is not accomplished, nor the duty imposed upon the railway company performed by it, when the culverts or sluiceways through its roadbed are so constructed as to impede or not permit the flow of the surface water in its natural and usual course, and cause it to be diverted and to overflow on the land of another." Missouri, K. & T. Ry. Co. of Texas v. Macon, Tex.Civ.App., 115 S.W. 847, 849.

It is also undoubtedly true that this duty is a continuing one at least to the extent that, once having constructed adequate drainage means as necessitated by the "lay of the land," these means must be kept operative. Millerman v. Houston & T. C. R. Co., Tex.Civ.App., 27 S.W.2d 897.

While it has been said that the words "natural lay of the land" have reference to the time of construction of the road, Gulf, C. & S. F. Ry. Co. v. Waller, Tex.Civ.App., 288 S.W. 522, there is also authority for the proposition that the "natural lay of the land" comprehends the land with such improvements and changes as are reasonably to be contemplated. St. Louis Southwestern Ry. Co. of Texas v. Rollins, Tex.Civ.App., 89 S.W. 1099. There seems to be no case which has specifically held that such a change in the natural lay of the land as results from the construction of a factory building in a city would still be within the principle of the last cited case. However, we do not need to pass on this precise point. We think there was no burden on the plaintiff to prove the condition of the property on which the Palo Duro plant was located at the time the defendant's track was built. Neither party in the trial court offered any evidence as to whether the factory or the track was built first. The plaintiff's witnesses testified that they were both in place for some 18 years, and if either party desired to prove a different status it could have undertaken to do so. The Rollins case last cited is authority in Texas for the proposition that in the absence of such proof the court could properly consider that there had been no change in the lay of the land since construction took place.

"It was not error, as claimed in the sixth assignment of error, for the court to charge the jury that if appellant was guilty of negligence in failing to construct and leave the necessary culverts or waterways as the natural lay of the land required, and appellee was thereby damaged, they should find for him. There was no testimony tending to show that there had been any changes made in `the lay of the land\' that would cause water from the creek to spread on land that it did not touch in times of overflows when the culverts and waterways were constructed, and the court properly considered the `lay of the land\' to be in the same

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