Fleming v. Chi., R. I. & P. Ry. Co.

• Decision Date: 18 December 1911
• Court: Iowa Supreme Court
• Parties: FLEMING v. CHICAGO, R. I. & P. RY. CO.

153 Iowa 386

133 N.W. 751

FLEMING

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

Supreme Court of Iowa.

Dec. 18, 1911.

Appeal from District Court, Cass County; A. B. Thornell, Judge.

Action for damages for negligence in obstructing a stream whereby certain premises were flooded with water, and whereby sickness resulted to plaintiff's assignor, culminating in her death a few months later. There was a verdict and judgment for the plaintiff. Defendant appeals. Reversed.Carroll Wright, J. L. Parrish, and J. B. Rockafellow, for appellant.

H. M. Boorman, for appellee.

EVANS, J.

Bull Creek is a small stream running through a part of the city of Atlantic. It is crossed by the track of the defendant railway company. The creek is covered by a culvert constructed by the defendant in 1902. There was evidence tending to show that the opening in the culvert was not large enough to carry the stream in times of high water. In the fall of 1905 the plaintiff lived in a rented home near the bank of the stream, and within 300 feet of the culvert. On the 17th of October, 1905, her premises were flooded as a result of very heavy rains. On the next day her daughter, who was living with her, had a severe cold and cough. She died on March 12th following. This action was commenced by the daughter during her lifetime. She later assigned her cause of action to her mother, who was duly substituted as plaintiff. The trial court held that there was no evidence to justify a finding that the flooding of the premises caused the disease from which plaintiff's assignor died. This disease was known as “consumption” or “tuberculosis.” The evidence is quite conclusive that the plaintiff's daughter was afflicted with this disease for some months, at least, prior to October 17th. In a sworn petition filed by the plaintiff herself in another case on September 26th, she averred that her daughter was “in the last stages of consumption.” The trial court, however, submitted to the jury the question whether the daughter's disease was aggravated through the negligence of the defendant, and whether she incurred additional pain and suffering by reason thereof.

The first question for our consideration is whether there is sufficient evidence in the record to sustain the jury's affirmative finding on this question. That is to say, whether there is any evidence to show that defendant's alleged negligence was the proximate cause of additional pain and suffering on the part of the plaintiff's daughter. The plaintiff's evidence was sufficient to show that the daughter was sicker subsequent to the date of the flood than she had been before. For the purpose of proving that this condition was caused by the flooding of the premises, the plaintiff introduced in evidence the testimony of her physician, as follows: “Q. Assuming, doctor, that on the 17th day of October of that year that the home of Miss Fleming was overflowed by water from Bull Creek, which was cold, the water was perhaps a foot deep upon the premises, filled the cellar with water, that she was then in the home, that the day before the flood she had no cold, what might have produced her cold from which you found her suffering on the 21st? ...