Doman v. The Baltimore
| Decision Date | 04 November 1942 |
| Docket Number | (No. 9327) |
| Parties | Frank Doman v. The Baltimore and Ohio RailroadCompany |
| Court | West Virginia Supreme Court |
Evidence
Where a written agreement has been executed in duplicate, each of the parties thereto receiving one copy, and in a subsequent trial of an action between the same parties, not growing out of such agreement, testimony as to certain terms thereof has been introduced without objection by both parties, the admission in evidence, over objection, of a proven copy of the agreement, the correctness of which is not questioned, on behalf of one party, whose executed original thereof is in its office in another state, after refusal of the adversary to produce his copy, upon demand, is not prejudicial error.
Error to Circuit Court, Hampshire County.
Action of trespass on the case by Frank Doman against the Baltimore and Ohio Railroad Company for damage to plaintiff's land resulting from overflow of river allegedly caused by construction of bridge by defendant. A verdict for defendant was set aside, and defendant brings error.
Judgment reversed; verdict reinstated; judgment entered here.
J. O. Henson, Stephen Ailes and G. K. Kump, for plaintiff in error.
J. S. Zimmerman, for defendant in error.
We have before us by writ of error, the judgment of the Circuit Court of Hampshire County, setting aside a verdict in favor of the defendant in an action of trespass on the case of Frank Doman against The Baltimore and Ohio Railroad Company.
The plaintiff is the owner of a farm of approximately four hundred acres, abutting on the South Branch of the Potomac River, in Hampshire County, about six miles north of the town of Romney, for which he paid five thousand dollars in 1911. Between sixty and seventy acres of this farm are denominated "first bottom" land, which is described as low-lying, or "made", ground, consisting, as we understand, of alluvial deposits from the river. A branch line of The Baltimore and Ohio Railroad Company extends through the farm, and is carried across the river by a bridge about four hundred fifteen feet in length. This bridge is composed of four spans of steel girders or beams, of approximately equal length, which rest on abutments of masonry at either end of the bridge, and on three stone piers standing in the bed of the stream. In 1936 each of these four spans was also supported by three "bents", which were constructed of upright posts, or beams, of wood, the lower parts of which were protected against the current by wooden cribs filled with rock.
The greatest flood known in the South Branch Valley occurred in 1936. The bridge was wholly submerged and partly washed aiway. Six of the twelve bents were entirely taken out, including the three between the abutment and first pier on the Doman side of the river. The next three, however, were left intact. Some of the Doman land suffered substantial injury by washing and a more extensive area was strewn with wreckage from the bridge and railroad. An agreement was then made between the railroad company and Doman, by which the drift material was reclaimed, certain land leased for use in connection with the rebuilding of the bridge, and damages to the land adjusted. In the reconstruction of the bridge the remaining six "bents" were removed by cutting them off at low water level and casting the stone from the cribs into the low places of the river bed. Two concrete piers, less in size than the cribs, were then constructed beneath each span of the bridge.
In 1937, and again in 1939, lesser floods occurred in the river from which certain washing of the plaintiff's land resulted, and by which debris from the river was spread over other parts of the surface. For these injuries occurring since the flood of 1936, this action was brought. It is charged that the reconstruction of the bridge caused the main current of the stream to flow more closely to the plaintiff's side of the river, and to wash away parts of his land and to overflow others, whereas formerly the like overflow was cast on the opposite side of the river. It is also charged that the new piers, added to the remnants of the former cribs, increased the obstruction of the river.
The jury, which viewed the land involved, found for the defendant. The court set aside the verdict on the sole ground that there had been admitted in evidence on behalf of the defendant over plaintiff's objection, a copy of the written agreement of 1936 between Doman and the railroad company, without justifying the non-production of the original.
Preliminary to the discussion of the admissibility of this copy in evidence, it may well be observed that other evidence in the case would have sustained the verdict. In the first place, it does not follow, as a matter of law or fact, that, because the injuries from the later floods came after the rebuilding of the bridge, they were thus proved to have been caused thereby. These injuries followed also the extraordinary flood of 1936, a natural event, and according to defendant's evidence, resulted therefrom. The evidence shows that land of the character here involved in the South Branch Valley is frequently submerged by flood, even where no bridge is involved. The defendant's engineers testify that the clearance beneath the bridge, after the substitution of the eight concrete piers for the twelve cribs or be;nts, was increased ten per cent. It is not apparent how the six stumps of the former cribs or bents, rising no higher than low water level, could materially increase the obstruction of the river, divert its current in times of flood, or retain drift after the river's surface had reached flood stage. The jury could, therefore, very well have found a verdict for the defendant on the ground alone that the railroad company's act had not caused, or contributed to, the alleged injuries upon which this action is based.
Another serious state of the evidence is also apparent. The plaintiff testified that his damage was three thousand dollars, being the exact amount claimed in the declaration; but he persistently refused even to attempt to break down this amount into items, or elements, or to give any basis for his conclusion. This evidence is competent for such weight as the jury may consider it worth, but is not binding upon the jury. C. & O. Railway Co. v. Allen, 113 W. Va. 691, 169 S. E. 610; Clay County Court v. Adams, 109 W. Va. 421, 155 S. E. 174; ...
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