Berard v. Atchison & N. R. Co.

• Decision Date: 16 October 1907
• Docket Number: No. 14,946.,14,946.
• Citation: 79 Neb. 830,113 N.W. 537
• Parties: BERARD ET AL. v. ATCHISON & N. R. CO. ET AL.
• Court: Nebraska Supreme Court

79 Neb. 830

113 N.W. 537

BERARD ET AL.

v.ATCHISON & N. R. CO. ET AL.

No. 14,946.

Supreme Court of Nebraska.

Oct. 16, 1907.

Syllabus by the Court.

A verdict which there is no competent evidence to sustain will be set aside.

The measure of damages for the destruction of a growing crop is the value of the crop at the time of its destruction.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Richardson County; Raper, Judge.

Action by Cynthia Berard and another against the Atchison & Nebraska Railroad Company and others. Judgment for plaintiffs, and defendants appeal. Reversed, and remanded for new trial.J. W. Deweese and Frank E. Bishop, for appellants.

John Gaynor and C. Gillispie, for appellees.

DUFFIE, C.

The plaintiff Cynthia Berard is the owner of about 140 acres of land lying on the north side of the Nemaha river, in Richardson county, and about a mile north of the railroad embankment reaching from the station of Preston to the Nemaha river, across which a bridge had been constructed about 90 feet in length; the opening underneath being the only opening left for the passage of the waters of said river. The embankment from the station of Preston to the east end of the bridge is about a mile in length and 12 feet high, and it is claimed that during the season of 1902-03 this embankment dammed up the water of the river, causing it to back up over the plaintiff's lands, destroying the crops growing thereon. This land was rented to Threlkel for the years 1902 and 1903 for a share of the crops, and he joined in this action to recover from the railroad company the crops alleged to have been destroyed in consequence of its negligence in not providing more adequate means for the escape of the flood waters of the river.

The evidence discloses that from the station of Preston to the Nemaha river a solid embankment has been thrown up across the valley for the whole distance; that the only opening left for the flow of water is beneath the bridge, which, at the date of the injury complained of, was about 90 feet in length and wholly inadequate to allow the escape of the flood waters accumulating in the valley. It was shown that on the north side of the embankment the waters were dammed up to a depth of several feet, while on the south side the land was free of water and cattle were grazing in the fields. It is quite clear, from the testimony given, that the embankment caused the waters to dam up on the north side thereof and...