Equitable Powder Mfg. Co. v. Cleveland

• Decision Date: 28 October 1910
• Citation: 246 Ill. 582,92 N.E. 979
• Court: Illinois Supreme Court
• Parties: EQUITABLE POWDER MFG. CO. v. CLEVELAND, C., C. & ST. L. R. CO. et al.

246 Ill. 582

92 N.E. 979

EQUITABLE POWDER MFG. CO.

v.CLEVELAND, C., C. & ST. L. R. CO. et al.

Supreme Court of Illinois.

Oct. 28, 1910.

Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Madison County; R. D. W. Holder, Judge.

Action by the Equitable Powder Manufacturing Company against the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company and others. From a judgment of the Appellate Court for the Fourth District affirming a judgment for defendants, plaintiff appeals. Affirmed.

C. H. Burton, John J. Brenholt, and Kinealy & Kinealy, for appellant.

Wise, Keefe & Wheeler, Sweeney & Walker, and Warnock, Williamson & Burroughs (Silas H. Strawn, of counsel), for appellees.

PER CURIAM.

This suit was brought by the appellant against the appellees, four railroad companies, to recover damages alleged to have been sustained by appellant as the result of the negligence of appellees.

The appellant's factory is located at the foot of a hill between two streams, called the East and West forks of Wood river, and just above their confluence, forming Wood river, which flows into the Mississippi. In times of heavy rains large quantities of water are alleged to flow down the East and West forks of Wood river, and the valley tributary to them, into Wood river, and thence to the Mississippi river. The declaration alleges that the track of the appellee the Cleveland, Cincinnati, Chicago & St. Louis Railway Company runs from the southwest to the northeast, south and east of appellant's premises, and crosses the East fork of Wood river near said premises and several times a short distance northeast thereof, and that the said railroad company also possessed and operated another track a short distance west and south of the appellant's premises; that the appellees the Chicago, Burlington & Quincy Railroad Company and the Chicago, Burlington & Quincy Railway Company were possessed of and operating a railroad which crossed Wood river at a point a short distance west and south of appellant's premises; that the appellee the Chicago & Alton Railroad Company was possessed of and operating a railroad which crossed Wood river, and the lowlands adjoining the same, a short distance west of appellant's premises; that the railroads intersected and crossed natural waterways, of which Wood river is the main channel. The declaration further alleges that the appellees contructed solid embankments across the lowland and natural waterways and left insufficient openings where they crossed Wood river and the East fork and other places where the water ran in a state of nature to allow it to pass off; that, as the railroad embankments were constructed, they, with the hills back of the appellant's plant, formed a triangular pocket about appellant's factory, into which the water was forced and caused to flow by the railroad embankments in quantities greatly in excess of the water that flowed or came there in a state of nature and prior to the building of the railroad embankments; that by reason of these obstructions, in 1902, and again in 1905, appellant's premises were caused to be flooded and loss and damage sustained by it.

The case has been tried twice in the circuit court. The first trial with a jury resulted in a verdict in favor of appellees. This verdict was set aside and a new trial awarded. On the second trial the parties waived a jury and tried the case by the court. The court found appellees not guilty, and rendered judgment against appellant for costs. The Appellate Court for the Fourth District affirmed the judgment and granted a certificate of importance, upon which a further appeal is prosecuted to this court.

The appellant contends that the judgment of the circuit court was the result of that court holding that, no matter whether appellees were guilty of the negligence charged, they were not jointly liable. Appellees were separate and independent companies, except the Chicago, Burlington & Quincy Railroad Company owns the track which is operated by the Chicago, Birlington & Quincy Railway Company. It is not alleged in the declaration that appellees acted in concert in any manner whatever in the construction of their embankments and tracks or in the operation of the railroads. The proof shows the structures were built at different times, and that the railroad companies acted independently in the construction of their respective roads and embankments.

The theory of appellant is that the embankment of each of appellees was negligently constructed, and that the combined effect of all of them is to obstruct the natural flow of water and cause it to flow and stand upon appellant's premises and damage its property, and they are therefore jointly liable. Appellees contend that there is no question of law presented for our review by this record, and that, as the facts were conclusively settled by the judgment of the Appellate Court, the judgment must be affirmed. The Appellate Court said in its opinion that the judgment of the trial court was not so contrary to the evidence upon the question of appellees' negligence as to justify a reversal of the judgment. That court also held in its opinion that the appellees were not jointly liable.

Upon the question whether the damages sustained by appellant were the proximate result of the negligent acts of appellees, as charged in the declaration, the evidence was conflicting, and this court has no jurisdiction now to weigh the evidence for the purpose of determining whether the judgment is sustained by the weight of the evidence or not. Unless some error of law committed by the trial court is preserved for our review, the judgment of the Appellate Court upon the facts is conclusive on this court. The contention of appellant is that the judgment of the trial court was the result of holding that defendants were not jointly liable, and not the result of...