Chesapeake & O. Ry. Co. v. Saulsberry
| Decision Date | 20 December 1935 |
| Citation | 88 S.W.2d 949,262 Ky. 31 |
| Parties | CHESAPEAKE & O. RY. CO. v. SAULSBERRY et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Carter County.
Action by Lottie Saulsberry and others against the Chesapeake & Ohio Railway Company. Judgment for plaintiffs, and defendant appeals.
Affirmed.
Hunt & Bush and Rufus Lisle, all of Lexington, and John M. Theobald of Grayson, for appellant.
Dysard & Tinsley, of Ashland, for appellees.
STANLEY Commissioner.
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 which 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 the 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 ($3000) 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 nearby mines. Thus the case as presented for determination is whether the railroad company under such circumstances is liable as a matter of law for not having kept the openings sufficiently large for the free passage of water from ordinarily heavy rains. Not controlling are the cases where the structures erected were themselves insufficient or constituted partial barriers, nor those where there were unnatural obstructions or interferences caused by the negligent failure to remove drift or other débris recently collected at the mouth or in or against the structure.
The appellant maintains that the petition did not state a cause of action. The sufficiency of the evidence was also tested by motions for a directed verdict. Both contentions rest upon the same conditions, for the pleading and proof are substantially alike.
There is no charge of negligent construction of the bridge, but of course negligence may consist of an omission to perform a duty owing another as well as of some positive act invading another's rights. The charge against the defendant is not the failure to keep the bed of the stream clear regardless of whether its bridge obstructed the flow or caused the accumulation. It is a failure to maintain the opening through the fill or...
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Mason v. City of Mt. Sterling, 2001-SC-0813-DG.
...reasonable care and diligence to maintain their drainage pipe sufficiently to allow free passage of water. Chesapeake & O.R. Co. v. Saulsberry, 262 Ky. 31, 88 S.W.2d 949, 951 (1935). As in Chesapeake, the Mortons can be subject to liability for failure to maintain an adequate opening for th......
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...231 Ky. 745, 22 S.W.2d 131. The landowner may be liable for acts which cause flooding of his neighbor's land. Chesapeake & O. R. Co. v. Saulsberry, 262 Ky. 31, 88 S.W.2d 949. The landowner may be liable to lower riparian owners if he places deleterious substances on his land which ordinaril......
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Scott v. Hedrick, No. 2009-CA-000243-MR (Ky. App. 3/5/2010)
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