Fairbury Brick Co. v. Chi., R. I. & P. Ry. Co.

• Citation: 113 N.W. 535,79 Neb. 854
• Decision Date: 16 October 1907
• Docket Number: No. 14,914.,14,914.
• Parties: FAIRBURY BRICK CO. v. CHICAGO, R. I. & P. RY. CO.
• Court: Nebraska Supreme Court

79 Neb. 854

113 N.W. 535

FAIRBURY BRICK CO.

v.CHICAGO, R. I. & P. RY. CO.

No. 14,914.

Supreme Court of Nebraska.

Oct. 16, 1907.

Syllabus by the Court.

Although a rainfall may be more than ordinary, yet, if it be such as has occasionally occurred at irregular intervals, it is to be foreseen that it may occur again; and a party engaged in a public work, the construction of which involves the change or restraint of the flow of water in a natural channel, is guilty of negligence if it fails to make reasonable provision for the consequences that will result from such extraordinary rainfalls as experience shows are likely to recur.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Jefferson County; Kelligar, Judge.

Action by the Fairbury Brick Company against the Chicago, Rock Island & Pacific Railway Company for damages to its machinery, tools, and partially manufactured products, caused by their being flooded with water backed up from defendant's embankment. Judgment for plaintiff, and defendant appeals. Affirmed.W. A. Low, W. D. McHugh, and Hazlett & Jack, for appellant.

W. H. Barnes, for appellee.

CALKINS, C.

In 1887 the defendant constructed its railway across the valley of the Little Blue river at a point where the first bottom is from one-half to three-quarters of a mile wide. It built a bridge across the river proper, with approaches consisting of earthen embankments and open trestle work, making in the aggregate a waterway of about 950 feet. In 1895 the defendant filled up these trestles with solid embankments of earth, reducing the waterway across the bottom by from 350 to 400 feet. In 1902, during a period of high water, one of these embankments was washed out; but it was again filled up, to be again carried away in 1903 at the time of the high water which caused the damage which is the subject of this action. The plaintiff was the proprietor of a brickyard situated in the valley a short distance above the defendant's railway. About the 1st day of June, 1903, heavy rains had fallen along the river, causing it to rise above its banks, and, the flood waters being dammed by the embankments of the defendant's railroad, backed up and submerged the plaintiff's yards, damaging and destroying its machinery, tools, and partially manufactured products. This action was brought against the defendant to recover the damages so suffered, on the ground that the defendant did not use reasonable and proper care in the construction and maintenance of its embankments, having insufficient openings to accommodate the stream in times of high water. There was a trial to a jury, and a verdict for the plaintiff. From the judgment rendered upon this verdict, the defendant appeals.

The sole question in the case is how far a party who, in the execution of a public work which crosses a water course and necessarily interferes with the natural drainage, is bound to take notice of and provide for those storms, which, although unusual, have occasionally occurred at rare and irregular intervals within the memory of living men. It appears that during the 18 years next prior to the construction of defendant's railway there had occurred floods at the place in question in the years 1869, 1875, and 1881, practically as high as the one which did the damage complained of. But the defendant claims that these were extraordinary, and that it was not, therefore, required to take notice of and provide for such floods. At the request of the defendant the court gave to the jury 11 different instructions, in each of which the jury was told that the defendant would not be liable for damages caused by water backed up by its embankment, if the flood was so large and unusual as not reasonably to be expected to pass in said stream; and in one of these instructions the jury was told that, to constitute a flood so large and unusual as not to be reasonably expected, it was not necessary to show that such flood had never occurred theretofore in history. It is not complained that this view of the case was not presented to the jury with sufficient iteration; but in the second instruction given to the jury at the request of the plaintiff the jury was told that it was the duty of the defendant company to exercise due care in the construction and maintenance of its embankments with reference to such extraordinary floods as had occurred within the memory of men then living, and as far as engineering skill and foresight could reasonably anticipate, to avoid damage to property above such embankments by a recurrence of such floods; in the third instruction given at the request of the plaintiff the same doctrine was practically reiterated; and in the fourth the jury was told that: “By the term ‘act of God’ is meant those events and accidents which proceed from natural causes, and cannot be anticipated and guarded against, or resisted, such as unprecedented freshets, earthquakes, cyclones, and lightning. For injuries occurring by any of these means there is no liability, providing reasonable and ordinary care has been exercised by defendant to guard against such injuries.” Of all these instructions the defendant complains and insists that the case should be reversed on account of their having been submitted to the jury.

This question is not a new one. In the case of Mayor of City of New York v. Bailey, 2 Denio (N. Y.) 433, the court, by Chancellor Walworth, said: “The degree of care which a party who constructs a dam across a stream is bound to use is in proportion to the extent of the injury which will be likely to result to third persons, provided it should prove insufficient. It is not enough that the dam is sufficient to resist ordinary floods. If the stream is occasionally...