Burr's Ferry, B. & C. Ry. Co. v. Allen

• Decision Date: 29 March 1912
• Citation: 149 S.W. 358
• Court: Texas Court of Appeals
• Parties: BURR'S FERRY, B. & C. RY. CO. v. ALLEN.

149 S.W. 358

BURR'S FERRY, B. & C. RY. CO. v. ALLEN.

Court of Civil Appeals of Texas. Galveston.

March 29, 1912.

On Motion for Rehearing, May 16, 1912.

Appeal from District Court, Tyler County; W. B. Powell, Judge.

Action by E. E. Allen against Burr's Ferry, Browndel & Chester Railway Company. From judgment for plaintiff, defendant appeals. Reversed and remanded on rehearing.

Mooney & Goodwin, of Woodville, and Jno. W. Hornsby and Andrews, Ball & Streetman, all of Houston, for appellant. J. A. Harper and Joe W. Thomas, both of Woodville, for appellee.

PLEASANTS, C. J.

This is an action to recover damages brought by the appellee against the appellant. The petition alleges, in substance, that by the negligent construction of its railroad bridge across the Neches river in Tyler county, the appellant wrongfully obstructed said stream, and thereby caused the loss of logs which appellee was rafting down said stream to market in the city of Beaumont, and caused delay and additional expenses to appellee in the transportation of logs owned by him to said market during the logging season of 1909; the aggregate amount of damages claimed by appellee being the sum of $2,500. The defendant answered by general demurrer, special exceptions, general denial, and a plea of contributory negligence, in which it is averred, in substance, that the loss and damage sustained by plaintiff was due to the negligent and careless method pursued by him in rafting his said logs down said river and was not caused by any defect in the construction of defendant's bridge. The trial in the court below resulted in a verdict and judgment in favor of plaintiff for the sum of $971.38.

The first assignment of error attacks the verdict on the ground that it is not supported by the evidence, "in that the undisputed evidence shows that the Neches river at and near the point in question could not be used in its natural state for the floating of logs, and that the same could not be used for said purpose in instances of local rainfalls, but that it was necessary for the floating of logs that there be heavy headwater rains which would cause the water of said river to rise and remain up for a number of days, and that there was no regularity whatever about said rainfalls, but that sometimes there would be such a rainfall in the summer season, and sometimes in the winter season, and sometimes not at all during the year, and that there have been times as long as 18 months when there would be no rainfall, and that at the time of the trial it had been as long as a year during which time there had not been sufficient water in which to float logs, and that no one could tell with any degree of certainty whatever whether or when there would be sufficient water in said river for the purpose of floating logs, and that the use of said river for said purpose of floating logs was wholly dependent upon conditions which were and did occur with no regularity and at no reasonably certain time, and that as a result thereof logs could not be prepared at any certain time for market, and that it frequently happened that the same, after being felled, rotted and went to waste before they could be carried to market. Wherefore said stream was not a navigable stream, within the meaning of the law."

The issue as to whether the Neches river above and at the point where it is crossed by appellant's bridge is a navigable stream was submitted to the jury, and we think the evidence is sufficient to sustain the finding that the river was and is a navigable stream from the point above said bridge at which appellee placed his logs therein down to the city of Beaumont.

The evidence shows that the upper portion of the stream could only be used for rafting logs at flood times, and that usually there were two rises each year during which the stream could be so used. There had been a great scarcity of rain during the two or three years preceding the trial in the court below, which took place in February, 1911, and during that time the rises in the river had been at longer and more irregular intervals; but the undisputed evidence shows that it had been used as a means of transporting timber to market by timber owners generally for a long time, and was still being so used. The facts are sufficient to establish the navigable character of the stream so as to render its obstruction by the appellant wrongful. Orange Lumber Co. v. Thompson, 126 S. W. 604.

The second assignment of error complains of the refusal of the trial court to submit to the jury the following instruction requested by the defendant: "You are instructed, in this case, that if you believe from the evidence that the Neches river, about the place in question, is not such that logs can be floated to market thereon in its ordinary state, and you further believe from the evidence that logs can only be floated to market thereon in times of heavy rainfall, and you further believe from the evidence that there is no regularity about such rainfall, and no reasonably certain period during the year when such rainfall may be expected to occur, and that because thereof, if you so find, the use of said river about said place is not of commercial value to the public for the purposes of floating logs, you will in such event find that such stream is not navigable, and will return your verdict herein for the defendant."

The court instructed the jury that "a navigable stream is one capable of being used by the public at all times or periodically during the year for times long enough to make it susceptible of beneficial use to the public as a means of transportation." This was a correct and sufficient definition of a navigable stream in so far as that issue arises in this case, and the requested instruction was properly refused.

There was no error in the ruling of the court refusing to permit the defendant to introduce testimony to the effect that the rafting of logs down the river had not proved profitable to some of the parties engaged in the timber business on the river above appellant's bridge. This evidence did not tend to show that the river was not susceptible to beneficial use by the public as a means of transportation. The commercial or beneficial value of the stream as a means of transportation depends upon the extent of its use or capacity for use for such purpose, and not upon the success of the business ventures of those who so use it.

The fourth assignment of error complains of the following portion of the court's charge: "If you find for the plaintiff under the instruction herein given you, in estimating his damages, you will take into consideration the total value of all the logs at Beaumont that would have...