Chesapeake & O. Ry. Co. v. Saulsberry
| Decision Date | 20 December 1935 |
| Citation | 262 Ky. 31 |
| Parties | Chesapeake & O. Ry. Co. v. Saulsberry et al. |
| Court | United States State Supreme Court — District of Kentucky |
2. Waters and Water Courses. — Railroad whose right of way is crossed by stream owes duty to upper riparian proprietors to remove debris out of channel within reasonable time to prevent flooding of upper lands.
3. Waters and Water Courses. — Railroad must exercise reasonable care to maintain its bridges and culverts with openings sufficient to permit free passage of water during normal times, including times of storms and floods reasonably to be expected, in order to prevent waters from backing up and damaging upper riparian owners.
4. Waters and Water Courses. — Petition, in action by upper riparian owners, alleging that defendant railroad negligently permitted earth and debris to collect in creek under its bridge and thereby caused creek to overflow and wash away soil and buildings on plaintiffs' land, held to state cause of action.
5. Waters and Water Courses. — Liability of railroad to upper riparian owners for damage resulting from overflowing of creek held for jury under evidence that railroad had permitted bed of stream under its bridge to become filled, so that opening was not sufficiently large for free passage of water from ordinarily heavy rains.
6. Waters and Water Courses. — In action by upper riparian owners against railroad for flooding of their land, in which specific issue was whether railroad negligently failed to maintain sufficient opening under railroad bridge, instruction permitting recovery if creek under bridge was rendered insufficient to carry off water by defendant negligently permitting drift, earth, and debris to collect held not erroneous as substantially different from issue.
7. Evidence; Witnesses. — In action against railroad for flooding of creek running under railroad bridge, testimony that railroad section foreman, who testified concerning overflow and bridge opening and denied statement to plaintiff, had made statement to plaintiff concerning his efforts to get railroad to clean out under bridge, held incompetent as substantive evidence, but admissible for purpose of impeachment.
8. Trial. — Defendant, who failed to request court for instruction limiting jury's consideration of evidence which was admissible solely for purpose of impeachment, waived court's failure to give admonition as to effect of evidence.
Appeal from Carter Circuit Court.
HUNT & BUSH, RUFUS LISLE and JOHN M. THEOBALD for appellant.
DYSARD & TINSLEY for appellees.
Affirming.
The appellee recovered judgment for $500 against the appellant for damages to their buildings and land by the flooding and overflowing of Little Sinking creek caused, as it is alleged, by the negligent omission of the railroad company to keep open the space or aperture under its bridge through which the creek ran. The preponderant and better evidence is that on the two occasions involved, one in July, 1932, and the other in July, 1933, there were extraordinary and unprecedented rainfalls at and above the place and such unexpected deluge that the railroad company could not be held responsible for the resulting conditions. But there was substantial evidence that although the rains were heavy, they were not greater than had been experienced many times, and such as were reasonably to be expected. Of like character is the evidence pertaining to the size of the space under the bridge; the plaintiff showing that during the preceding five years, 75 per cent. of one side had become closed and 40 per cent. of the other, and the defendant showing that there had been no substantial filling up. Because of the conflict, the judgment must be viewed as though the evidence of the plaintiff established the facts rather than that of the defendant.
The double-track railroad bridge was erected about 1907. There was a center pier near the middle of the bed of the stream, but it appears that in normal times the pier was outside of the water on its west bank. The space between the east abutment and the east side of the pier, through which the creek ordinarily flowed, is 36 feet. The space between the west abutment and the west side of the pier is 39 feet. The basis of the action as stated in the petition is:
"Plaintiffs say that within the five years last past, the defendant has wrongfully, carelessly, negligently, and unlawfully, permitted drift, earth, rock, sand, and debris to collect in said creek and within aperture provided by it under said bridge for the passage of water, and by reason thereof the flow of the water in said creek has been retarded and held back, silt, earth, rock and other debris has been allowed to collect in said creek under and above said bridge, and has caused the channel and bed of said creek to fill up and has rendered said creek insufficient to carry the water draining therein, and has caused said creek to overflow and leave its channel and bed to overflow, stand over and on plaintiffs' said land, to wash and carry away the soil thereof and to deposit debris thereon, and to wash and carry away buildings and other improvements thereon, all to plaintiffs' damage in the sum of Three Thousand ($3,000) Dollars, no part of which has been paid."
The evidence of the plaintiff is that the bed of the stream under the bridge had filled gradually with a natural accumulation of sediment and perhaps some light refuse from...
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