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

• Citation: 18 S.W. 611
• Parties: GULF, C. & S. F. RY. CO. v. RICHARDS.
• Decision Date: 02 February 1892
• Court: Supreme Court of Texas

18 S.W. 611

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

Supreme Court of Texas.

February 2, 1892.

Commissioners' decision. Section A. Appeal from district court, Dallas county.

Action by J. M. Richards against the Gulf, Colorado & Santa Fe Railway Company for damages done to the land by the construction of defendant's road through it. Judgment for plaintiff. Defendant appeals. Reversed.

Leake, Shepard & Miller and J. W. Terry, for appellant. Geo. H. Plowman and H. G. Robertson, for appellee.

COLLARD, J.

J. M. Richards, plaintiff below, brought this suit in the district court of Dallas county, against appellant, alleging that he was the owner of certain 164 acres of land; that on March 16, 1886, he had been led to execute a deed conveying the right of way over his land to the railway company, 100 feet wide, with the right to use such additional land as might be necessary in the construction and maintenance of the road. It was alleged that the deed was obtained from him by fraudulent representations, but the court below sustained exceptions to that part of the petition, and it is not before us. He alleged that the railway company had taken more of his land than was necessary; negligence in the construction of the road, causing his land to overflow; destruction of his timber outside of the right of way; leaving excavations therein, in which water accumulated, causing damage to his land to the amount of $3,500. The trial resulted in a verdict and judgment for plaintiff for $700, from which defendant has appealed.

The evidence adduced by plaintiff tended to establish his case as made in the petition, while that of defendant tended to show that the road had been properly constructed, with due regard to the rights of plaintiff, and that no more of the land outside the right of way had been used than was permissible under the deed. The deed conveyed, for $125, to defendant, a right of way over the land where it might be deemed most convenient, "with right to use such additional land as may be necessary for the construction and maintenance of its road and telegraph lines, * * * and to take and use water and stone therefrom." The road crossed Rutlitt's creek on the land conveyed by plaintiff, over which there was a bridge constructed by defendant, some tresseling, and an embankment across the low bottom-land as high as 20 feet in places, causing the water to flow back from usual rains upon, and injuring, plaintiff's land. On adjacent land, belonging to one McAmes, there was a cut for the road where the dirt was thrown up on the right of way. Extensive excavations or "barrow pits" were made on the right of way, and outside of it, in constructing the embankment through the land of plaintiff. Rains filled up these pits, and they have never dried up; the water becoming stagnated, and forming on top a greenish scum. Over objections of defendant the court permitted McAmes and McCullam and the plaintiff to testify that if the railroad bank had not been constructed out of the earth along-side of it, out of the "barrow pits," but had been constructed out of earth "taken from excavations on McAmes' adjacent land, near the embankment, there would have been no standing water," etc. The objection to the testimony, and the error assigned to the ruling, was that "the testimony was the opinion of the witnesses, who were not possessed of sufficient information concerning the construction of a railroad to testify as to whether or not defendant was negligent therein." The witnesses were not experts, but were familiar with the facts upon which their opinion was based, and stated the facts. They had examined the embankment, the "barrow pits," and excavations, knew approximately their dimensions, depth, etc., and had seen the water standing in them. No special scientific knowledge was necessary to qualify them to form a correct opinion of the cause of the water standing in the excavations, or to enable them to say that if the excavations had not been made the water would not have remained in them, or that, if the dirt had been taken from the cuts on McAmes' land to construct the embankment, there would have been no standing water. The testimony was not obnoxious to the objections made to it. Railway Co. v. Klaus, 64 Tex. 293; Railway Co. v. Jarrard, 65 Tex. 560; Railway Co. v. Locker, 78 Tex. 279, 14 S. W. Rep. 611. In all the cases the rule is recognized that, if an opinion is admissible at all, the non-expert witness is qualified to express his opinion, if he has seen and observed the cause and effect, and states the facts upon which the opinion is based. Railway Co. v. Hepner, 18...