Ferderer v. N. Pac. Ry. Co., No. 7102.

CourtNorth Dakota Supreme Court
Writing for the CourtNUESSLE
Citation77 N.D. 169,42 N.W.2d 216
Docket NumberNo. 7102.
Decision Date06 April 1950

77 N.D. 169
42 N.W.2d 216


No. 7102.

Supreme Court of North Dakota.

April 6, 1950.

Action by J. J. Ferderer against the Northern Pacific Railway Company, a corporation, to recover damages for negligence in the damming and diversion of a river and construction and maintenance of diversion channel, dikes and embankments. The District Court of Grant County, L. C. Broderick, J., entered judgment on verdict for plaintiff, and the defendant appealed. The Supreme Court, Nuessle, C. J., held that the evidence was sufficient to sustain a finding by the jury that the flooding of plaintiff's land and the resultant damage were proximately caused by the defendant's negligence in the construction and maintenance of diversion channel and dikes and embankments.

Judgment affirmed.

Burke, J., dissenting.

See also 75 N.D. 139, 26 N.W.2d 236.

[42 N.W.2d 217]

Syllabus by the Court

1. The owner of land through which a stream flows has the right to dam or change the course of the stream, but in doing so is bound to see to it that no injury results to another therefrom, and in that behalf to make such provisions as are necessary to take care not only of the normal flow of the stream but also of any flood that men of ordinary experience and prudence could foresee. And this duty is a continuing one.

2. Where in an action for damages on account of injuries received on account of negligence in the damming and diversion of

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a stream and the defense relied on is that the damage claimed was the result of an extraordinary and unprecedented flood the burden is on the defendant to establish such defense.

3. Where the sufficiency of the evidence to warrant a finding of negligence by the jury is challenged all reasonable intendments in so far as the evidence is concerned must be resolved in favor of the verdict.

4. A witness may testify as to height and width and distances although he has made no measurements of the same and bases his answers wholly on estimates, but the weight and worth of such testimony are for the jury.

5. Where a jury is directed to answer a special interrogatory pursuant to the provisions of Section 28-1503, R.C.1943, it is improper for counsel in argument to the jury to comment on the effect of the answer to the special interrogatory.

6. Though an instruction standing alone may be insufficient or erroneous it must be considered in connection with the remainder of the charge and if the whole charge taken together correctly advises the jury as to the law, the error, if any, is thereby cured. State v. Kerns, 50 N.D. 927, 198 N.W. 698.

E. T. Conmy and E. T. Conmy, Jr., Fargo, for appellant.

Murray & Murray, Bismarck, for respondent.

NUESSLE, Chief Justice.

This action was brought by the plaintiff to recover damages from the defendant Railway Company on account of negligence on the part of the defendant in the damming and diversion of the Cannonball River and in the construction and maintenance of the diversion channel, dikes, and embankments erected and used in such damming and diversion.

The case was tried to a jury. The jury was directed to answer a special interrogatory and to return a general verdict. The interrogatory was answered in the negative and a verdict not inconsistent with it was returned for the plaintiff. Judgment was entered on the verdict. The defendant having laid a foundation therefor moved for judgment notwithstanding the verdict The motion was denied, whereupon the defendant perfected the instant appeal from the judgment.

The record discloses the following facts: In March, 1943, plaintiff was a tenant in possession of a farm in the valley of the Cannonball River, a tributary of the Missouri. He lived there with his family. The valley, of varying width, descends from west to east through a rough terrain. The channel of the river is tortuous. To the northwest of the plaintiff's farm it curves to the south, thence easterly through the farm south of his buildings, thence north again east of the buildings, thus forming a loop. In 1909 the defendant built a line of railroad up the valley. The grade for the roadbed was raised above the valley floor about four feet. It crossed the Cannonball northeast of the plaintiff's buildings and passing about 1,000 feet north of the buildings again crossed the river northwest of them. Both of these crossings were over fills in the channel. Therefore, it became necessary to change the course of the river. Accordingly, the defendant cut a new channel north of and parallel with its roadbed across the peninsula formed by the loop. To divert the stream into the channel thus cut an earthen dam was constructed 200 feet north of the west crossing of the river. About 200 feet west of this crossing there was a depression or draw parallel with the channel. The grade was built through and over this draw and two cement culverts each 36 inches in diameter were laid under the grade to take care of such water as might run down the draw from the north. Likewise, under the fill in the channel on the east side of the loop two cement culverts each 30 inches in diameter were laid to convey back into the stream such water as might accumulate in the abandoned portion of the channel. Thus under the same head of water the 36 inch culverts had more than two-fifths greater capacity than the 30 inch. The diversion channel was 75 feet wide at the bottom and ten feet in depth with a uniform grade down

[42 N.W.2d 219]

from west to east. It was straight and approximately 4200 feet long. What was done with the earth that was excavated does not appear. The length of the original abandoned channel forming the loop was approximately 7800 feet. The dam across the river at the point of diversion was substantially built according to proper engineering standards. It was riprapped on its upstream side and a roadway passed over it.

In February, 1943, the weather turned warm. The snow melted and the Cannonball ran bank full. Then abruptly the temperature fell and the river froze over. With the cold weather the flow decreased and ice ten to fourteen inches thick was left in the river bed and hanging on the banks. On March 14, a storm began. This lasted for nearly four days, with high winds and a heavy fall of wet snow that drifted greatly. On March 22, the temperature rose and the snow melted rapidly. All the streams were in flood. On the 25th the river was running more than bank full. An ice gorge formed a mile and a quarter below the plaintiff's farm. The water backed up in the valley immediately above the gorge so that it was nearly a mile in width. Upstream from the diversion dam and railway embankment the valley was flooded and became an ice filled lake several hundred acres in extent. Water poured through the culverts west of the dam. Water also flowed in through ravines from the south. Thus the land within the loop flooded. It rose so high that it submerged the plaintiff's barnyard.

On the morning of the 25th, Carl Haff, one of the plaintiff's neighbors, came to the bank across the river south of the buildings. The plaintiff was away but his wife and children were at home. Haff shouted to the family that the situation was dangerous and that they should leave. At that time the water had not reached the house but the barnyard was submerged and he could see cattle standing in the water with only their heads visible. That afternoon the family walked from the house to the railroad track, thence along the track to the east side of the loop. There they were met by Haff who took them to his home where they remained that night. The next morning they returned to the farm walking in on the track. In the afternoon Haff and several neighbors again came. They drove in with a team of horses pulling a trailer on the track from the east side of the loop to a point north of the buildings, and then on some high ground to the buildings. They found that some of the plaintiff's cattle and hogs, and the poultry, in the barnyard were drowned. They removed those that were still alive. Some they transported in the trailer, others they drove out. They also took the family out.

At some time during the night of the 26th the railroad grade west of the dam was washed out as was the fill in the channel there and the west one-half or two-thirds of the diversion dam. The fill in the channel on the east side of the loop also was washed out, together with 320 feet of the railroad grade. And the water had risen so high that it reached and flooded the plaintiff's house. The facts set forth above are undisputed.

The defendant called as witnesses the section foreman and several members of his crew whose duty it was to patrol and look after that portion of its roadbed and track with which we are here concerned. These witnesses testified that on the morning of March 25th they patrolled the track as usual. At that time the water west of the loop and north of the track was nearly up to the top of the grade. It was spouting through the 36 inch culverts under such pressure that it kicked the water below back some 20 to 40 feet. Some of these witnesses also testified that the water was spouting through the 30 inch culverts under the fill on the east side of the loop in the same manner. There is no direct denial of this latter testimony. These witnesses testified that the water was higher on the north side of the track than it was on the south side, but it does not appear whether this was the case only on the west side of the loop or at any or all other points along the diversion channel. On the other hand, the defendant's witness, Haff, testified that on the afternoon of the 25th at the east crossing of the river the water was a foot higher south of the track than it was north of the track and that on the 26th it was two feet

[42 N.W.2d 220]

higher south than it was north of the track. Manifestly, if Haff was right, the water could not have been spouting through the culverts there. On the morning of the...

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