Chesapeake & O. Ry. Co. v. Weddington

• Decision Date: 29 November 1929
• Citation: 231 Ky. 745,22 S.W.2d 131
• Parties: CHESAPEAKE & O. RY. CO. v. WEDDINGTON.
• Court: Kentucky Court of Appeals

22 S.W.2d 131

231 Ky. 745

CHESAPEAKE & O. RY. CO. v. WEDDINGTON.

Court of Appeals of Kentucky

November 29, 1929

Appeal from Circuit Court, Floyd County.

Action by Grant Weddington against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Browning & Reed, of Ashland, Kirk, Kirk & Wells, of Paintsville, and Combs & Combs, of Prestonsburg, for appellant.

A. J May and Edward L. Allen, both of Prestonsburg, for appellee.

REES J.

The appellee, Grant Weddington, owns a tract of land of approximately 175 acres situated on both sides of Prater creek in Floyd county, Ky. The right of way of appellant adjoins appellee's land, and between the railroad right of way and Prater creek appellee owns a strip of land approximately 37 feet in width.

Appellee brought this suit for damages, and in his petition alleged that the railroad company "unlawfully, wrongfully and without right piled upon its right of way adjacent to the lands of this plaintiff and to Prater creek, an unusually large quantity of stone, dirt and other materials, thereby creating slips and slides of dirt in large quantities, the heavy weight of which caused the lands of this plaintiff to slip away and slide into Prater creek, thereby unlawfully and wrongfully diverting the natural flow of the water of said creek, so that the same was caused to wash and injure this plaintiff's lands on the opposite side of said Prater creek from said right of way. That said slipping and washing of said lands is the direct and proximate result of said unlawful and wrongful acts of the defendant, in depositing said stone and dirt upon said right of way, and the same has greatly damaged and destroyed this plaintiff's farm." Upon a trial of the case, verdict was returned in favor of the plaintiff for the sum of $800, and, from the judgment entered thereon, defendant has appealed.

The grounds urged for reversal are (1) that the trial court erred in overruling defendant's motion for a peremptory instruction (a) because the petition failed to state a cause of action, and (b) because of variance between the pleading and proof; (2) the instructions are erroneous; and (3) the verdict is grossly excessive.

It is argued that the petition fails to state a cause of action and is therefore insufficient to support a recovery, because it merely charges that the defendant so used its own land as to cause damage to the adjacent lands of the plaintiff, and since there is no charge of negligence, it is a case of damnum absque injuria for which no right of action exists. In the first place, the use of the word "negligence," or some derivative thereof, in a pleading, is not essential if negligence is a necessary inference from the facts alleged. In other words, the failure to allege negligence in a pleading does not render it defective, provided the circumstances alleged are such as to justify the inference of negligence. Geneva v. Burnett, 65 Neb. 464, 91 N.W 275, 58 L.R.A. 287, 101 Am.St.Rep. 628; Silveira v. Iverson, 125 Cal. 266, 57 P. 996; Metcalf v. Mellen, 57 Utah 44, 192 P. 676; Hughes v. Hudson-Brace Motor Co., 111 Kan. 397, 207 P. 795; 45 C.J. 1074. Here the facts alleged necessarily excluded any hypothesis other than that of negligence. While the owner of land may make any reasonable use of it he sees fit, and, if injury result to adjoining land by such use, it is damnum absque injuria, yet, if he uses his land in a negligent or unskillful manner, or the use is unusual, unreasonable, or unnatural, and causes damage to adjoining landowners, he will be held liable for such damage. He has no right to do any wrongful act or injury to the adjoining owner or inflict on him any injury which can reasonably be avoided. The petition in the instant case alleges that the railroad company piled unusually large quantities of stone and other materials upon its right of way adjacent to the lands of the plaintiff and thereby caused large quantities of dirt, rock, and other materials to slip into Prater creek, thereby unlawfully and wrongfully diverting the natural flow of the water, and that the damage to plaintiff's land was the direct and proximate result of the unlawful and wrongful acts of the defendant in depositing such stone and dirt upon its right of way. In Costigan v. Pennsylvania Railroad Co., 54 N. J. Law, 233, 23 A. 810, the railroad so constructed an embankment as to force earth upon adjoining land, and it...