Gulf, C. & S. F. Ry. Co. v. Haskell

• Decision Date: 04 September 1893
• Citation: 23 S.W. 546
• Parties: GULF, C. & S. F. RY. CO. v. HASKELL.
• Court: Texas Court of Appeals

23 S.W. 546

GULF, C. & S. F. RY. CO. v. HASKELL.

Court of Civil Appeals of Texas.

September 4, 1893.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by H. N. Haskell against the Gulf, Colorado & Santa Fe Railway Company for damages caused by an overflow of plaintiff's land. From a judgment for plaintiff, defendant appeals. Reversed.

Alexander & Clark and J. W. Terry, for appellant. Coombes & Gano, for appellee.

LIGHTFOOT, C. J.

The appellee brought suit in the district court of Dallas county to recover of appellant damages upon the following cause of action, as stated in his petition: That appellee is the owner of a tract of land lying in Dallas county, about three miles northeast of the courthouse, being a part of the John Grigsby league; that on the 1st day of January, 1887, the defendant company constructed its roadbed and track in a northeasterly direction through the county of Dallas, and threw up and graded its roadbed over and across a part of the John Grigsby league, and over and across a branch known as "Peak's Branch," a short distance below and to the southeast of appellee's tract of land, and erected and made an embankment across said Peak's branch to the height of 12 feet, extending said embankment for a long distance on each side of said branch; that said defendant company left a small opening in said embankment at the crossing of said branch, of only about 20 feet in width, as an outlet for the surface water for a large scope of territory lying on the northwest of its said roadbed, and for the water flowing off through said branch; that said opening was and is wholly insufficient to permit the water to flow off; that the said embankment dams up the natural flow of water, and causes the same to overflow and damage plaintiff's land; that defendant company so constructed its said roadbed for a long distance northeast of said Peak's branch as to cause the surface water which was accustomed to flow southeastwardly in channels lying to the east of said Peak's branch, and forced the same to flow over a part of plaintiff's land, and into said Peak's branch, thereby injuring plaintiff's land, and increasing the volume of water to be borne off through said Peak's branch; that defendant company, by reason of the diversion and obstruction of the natural flow of water as aforesaid, overflowed, washed away, and destroyed 90 panels of plaintiff's fence, of the value of $100; 400 blackberry vines, with the fruit thereon, of the value of $400; one-half acre of general garden vegetables, of the value of $100; one-half dozen fruit trees, of the value of $20; 1 acre of millet of the value of $25; 1 acre of corn, of the value of $20; one-fourth acre of potatoes, of the value of $50, — and injured and damaged plaintiff's said lands permanently in the sum of $2,500; the total damage of plaintiff in the sum of $3,200. There was a verdict of a jury, and judgment against the defendant company, from which it has taken this appeal.

The first assignment of error by appellant is as follows: "The court erred in allowing the plaintiff's witnesses Jeff Haskell and J. M. Browder to state to the jury, over defendant's objection, that defendant enlarged its trestle, and made a wider opening for Peak's branch after the overflow of 1888, because said evidence was irrelevant, and not competent, and was calculated to have an undue influence on the jury in arriving at the cause of the overflow; the same being likely to be considered by the jury as an admission on the part of the defendant that the opening was not sufficient, and was the cause of the plaintiff's land being overflowed." This point was properly raised by objection to the testimony, as shown by defendant's bill of exceptions. In the case of Railway Co. v. McGowan, reported in 73 Tex. 363, 11 S. W. Rep. 336, Judge Henry held that such testimony was not admissible. He says: "In this court, in the case of Railway Co. v. Burns, it was held that such evidence was improper; Judge Watts saying: `As a general rule, upon principle, as well as matter of public policy, such evidence ought not to be admitted. As a matter of common knowledge, the railway tracks and machinery, as well as other instrumentalities used in operating trains, are continually undergoing repairs and being improved. Undoubtedly, the public is greatly interested in the continuance of such improvements. Where circumstances have directed the attention of the company to a part or portion of the roadbed or other instrumentalities that, by additional safeguards, would be rendered more safe, to hold as a general rule that, after the desired improvement is made, that the company thereby admits that it has been negligent, would result in deterring the company from ever making an improvement. Indeed, it would be a harsh rule if every change for the better was to be considered as evidence showing former negligence.' 4 Tex. Law Rev. 54, 56; Morse v. Railway Co., 30 Minn. 465, 16 N. W. Rep. 358."

The point raised in the second assignment of error is that "the court erred in permitting plaintiff to prove by himself and his witnesses Jeff Haskell, T. J. Kerr, and W. F. Clark, over defendant's objection, that, `in their opinion, defendant's embankment caused the overflow of plaintiff's land,' and erred in refusing to rule out their said testimony after allowing them to testify, because said witnesses were not experts, and it had not been shown by their testimony that they were in position to know the facts, such as would justify the court in permitting them to give their said opinions to the jury." We do not think the court erred in admitting this testimony. "All witnesses must state facts only, except in certain cases in which persons of skill and learning may give their opinion. There are cases, however, in which unskilled witnesses may give their opinions; and there is still another class of cases in which they may do so when they give along with the opinions the facts on which they are founded. * * * The case of Porter v. Manufacturing Co., 17 Conn. 249, resembles very much the one before us. In that case a witness who had long been familiar with a particular region, and its streams and the rainfall, was permitted to give his opinion upon the question of whether a dam across a stream had not been raised so high as to be unsafe. The court said: `The opinions of such persons upon a question of this description, although possessing no peculiar skill on the subject, would ordinarily be more satisfactory to the minds of the triers than those of scientific men who were personally unfamiliar with the facts of the case; and to preclude them from giving their opinions on the subject, in connection with the facts testified to by them, would be to close an ordinary and important avenue to the truth.' * * * On such a question, the judgment of ordinary persons having an opportunity of personal observation, and testifying to the...