Henderson v. Hines

• Decision Date: 06 June 1921
• Docket Number: 358
• Citation: 183 N.W. 531,48 N.D. 152
• Court: North Dakota Supreme Court

183 N.W. 531

48 N.D. 152

ROY E. HENDERSON, Respondent, v. WALKER D. HINES, Director General of Railroads, Appellant

No. 358

Supreme Court of North Dakota

June 6, 1921

Action in District Court, Stark County, Lembke, J.

Defendant has appealed from the judgment in favor of the plaintiff.

Reversed and a new trial granted.

Judgment reversed, and a new trial granted.

Young Conmy, & Young, for appellant.

"When the special findings of fact are inconsistent with the general verdict, the former controls the latter and the court must give judgment accordingly." § 7633, C. L 1913.

"Extraordinary or unprecedented floods are floods which are of such unusual occurrence that they could not have been foreseen by men of ordinary experience and prudence. Ordinary floods are those the occurrence of which may be reasonably anticipated from the general experience of men residing in the region where such floods happen. Soule v. N. P. Ry. Co. 34 N.D. 8.

"And this is in accordance with the American doctrine as announced by the supreme courts of the various states. The American cases lay down the doctrine that, for damages accruing from extraordinary floods, or other causes that may be attributed to the act of God, or which cannot ordinarily be foreseen or prevented, there can be no liability. China v. Southwick, 12 Me. 238; Bell v. McClintock, 9 Watts, 119; Bridge Co. v. Navigation Co. 4 Rawle, 9; Everett v. Tunnel Co. 23 Cal. 225; Hoffman v. Water Co. 10 Cal. 413; Wolf v. Water Co. Id. 541; Lapham v. Curtis, 5 Vt. 371; Higgins v. Canal Co. 3 Har. (Del.) 411; Canal Co. v. Ryerson, 27 N. J. Law 457; Tenney v. Ditch Co. 7 Cal. 335; Richardson v. Kier, 34 Cal. 63; Shrewsbury v. Smith, 12 Cush, 177, etc.; Hannaher v. St. Paul M. & M. R. Co. 5 Dak. 22-23; Southern Ry. Co. v. Plott, (Ala.) 31 Sou. 33; Price v. Oregon R. Co. (Ore.) 83 P. 843.

"A person building a fence and gate across a stream and constructing culverts therein is not liable for the overflow of water caused by the breaking of a reservoir or dam over which he had no control, or by an unprecedented downpour of rain precipitating into the stream a flood not reasonably anticipated." American Locomotive Co. et al v. Hoffman, (Va.) 54 S.E. 25; Brown v. C. B. & Q. Ry. Co. (8th Cir.) 195 F. 1007; Eagan v. Central Vermont Ry. Co. (Vt.) 69 A. 732.

"The rule of law in such cases is that defendant is only required to take precautions against ordinary storms which occur in the vicinity; and if the damage would have occurred by the act of God, notwithstanding the obstruction, even if there were negligence on the part of the defendant, damages cannot be recovered." Kansas City P. & G. R. Co. v. Williams, (Ind. Ry.) 58 S.W. 570, 571; Ohio & M. Ry. Co. v. Thullman, (Ill.) 32 N.E. 529; L. & N. Ry. Co. v. Conn. 179 S.W. 195.

Under the settled law in this state, if the loss is caused by joint wrong of the parties, or on account of reasons for which defendant is not responsible all the damages cannot be recovered from the one defendant. Boulger v. N. P. Ry. Co. 171 N.W. 632, (N.D.); McDonough v. Russell-Miller Milling Co.; Meehan v. G. N. Ry. Co. 13 N.D. 443, 101 N.W. 183; Balding v. Andrews & Gage, 12 N.D. 267; 96 N.W. 305.

T. F. Murtha, for respondent.

"If reasonable care and foresight have been exercised in construction of a railroad, the railroad company cannot be held liable, but if there was negligence in the construction of the bridge, embankment, or other work which contributed to the injury, it is no defense that the flood was unexampled or overwhelming." Vyse v. Ry. (Ia.) 101 N.W. 736.

"A plaintiff is not bound to exclude the possibility that the accident complained of might have happened in some other way than that contended for by him. He is merely required to satisfy the jury by a fair preponderance of the evidence of the truth of his contention." Reichert v. N. P. 39, N.D. 114, (supra) § 4 of syl.; Vol. 1 Sackett's Inst. § 391 to § 397, pp. 321 to 326. There appears to be not even a shadow of objection to the instructions. 17 Cyc. 131 (V.) 5 Enc. of Evidence, 643; Laughlin v. Ry. 28 N.W. 873; Jones on Evidence, § 390 p. 491; 17 Cyc. 267 (3); 17 Cyc. 262 J. 269; 42 L.R.A. 753-762-764. 22 L. N. S. 1039. Commonwealth v. Leash (Mass.) 30 N.E. 163; § 4 Syl. (See bottom half of last column p. 164.)

Bronson, J. ROBINSON, C. J., concurs, CHRISTIANSON, J., (concurring specially). GRACE, J., BIRDZELL, J., (dissenting).

OPINION

Bronson, J.

This is an action for damages caused by flood waters. The defendant has appealed from a judgment entered upon a general verdict and special questions submitted to the jury. The identical property that was involved in Soules v. N. P., 34 N.D. 7, 157 N.W. 823, L.R.A. N.S. 1917A 501, is involved in this action. The same drainage area and the same drainway that were involved in Soules v. N. P., supra, Boulger v. N. P., 41 N.D. 316, 171 N.W. 632, and Reichert v. N. P., 39 N.D. 114, 167 N.W. 127, are likewise concerned. In the three cases mentioned damages were asserted through a storm which occurred on July 28, 1914. In this action damages are claimed for a storm that occurred on August 21, 1918. In the Reichert and Boulger cases, supra, the properties involved were located about a block, westward or northward, from the property involved herein. The following facts appear in the record:

Under conditions in a state of nature, prior to the development and growth of the city of Dickinson, as well as the construction of the defendant railway, there existed a territory composing a part now of the city of Dickinson and comprising about 168 acres, which naturally drained into a so-termed drainway southeasterly across the right of way of the defendant, and thence into the Heart river. In the growth and development of the city this drainage area has been platted into blocks and streets with connecting sewer facilities, grading of streets, curbs, gutters, ditches, and culverts. In this drainage area, plaintiff's leased property (lot 13, block 5) is situated, fronting upon Villard street, which abuts upon and parallels defendant's right of way. Comparatively considered, this drainage area, block 5, is rather low and flat, the grounds to the northward and westward sloping and being higher. The surface waters accordingly flow from the northward or westward along or towards block 5 southeasterly, where eventually they passed through this drainway into the Heart river. The defendant, in the improvement of its right of way several years ago, removed a bridge over this drainway, and has filled up the lands in the low places around this drainway, and installed a cast iron culvert under its right of way 250 feet in length, and 4 feet in diameter, with a drop or slope of 5 feet, and a cross sectional area of 12 1/2 square feet. There the embankment of this right of way is some 4 feet above the north end of the culvert, and, extending in a westward direction along Villard street, is higher than the crown of the street in front of plaintiff's property. There the gutter is 12 inches, the curb 3 1/2 inches, and the level of plaintiff's street line, 3 inches lower than the crown of the street. In addition, upon the right of way and upon the site of a part of this old drainway, there was constructed a wholesale grocery building abutting upon Villard street. There this drainway was filled up or obstructed. In lieu thereof, in the street with the permission of the city, the defendant installed a double concrete culvert about 185 feet long, with a cross sectional area of about 24 square feet. This culvert connected on the east end with an open ditch that ran some 100 feet, emptying into the culvert in the right of way, and on the west side with city culverts. These city culverts were located at the intersection of Villard street and Second avenue, two running east and west, and two, north and south, and having a cross sectional area of about 19 square feet. Thus were methods of disposition provided for the surface waters of this drainage area. If the city culverts were unable to take care of the water, the resultant effect was an overflow upon the street there which, except through the culverts, could not escape southward off the street along the old drainway by reason of the railway embankment, the construction of the wholesale grocery building, and the filling up of the old ditch or drainway there formerly existing.

On August 21, 1918, between 9 and 10 a. m., a heavy rain, accompanied by some wind, fell to the extent of 1 1/2 inches at Dickinson. Witnesses varied as to its duration from 20 minutes to one hour. Plaintiff testified that it lasted about one hour. In a short time the streets surrounding block 5, particularly Villard street, were overflowing with water. Into the basement of plaintiff's hardware store, the water ran in through manholes in the front sidewalk and through basement windows broken by the pressure of the water. The water filled his basement (8 feet deep), and rose upon the ground floor to a depth of about 10 or 11 inches.

The same day, the water receded upon the ground floor. It was the third day before the basement was entirely drained, the sewer appearing to be clogged. Plaintiff testified that the water in the street was coming from the west and the east; that when it came into the store it was backing up from the east (that is, from the place where the city culverts are located some 150 feet eastward. Numerous witnesses testified. Testimony was introduced that Villard street in front of plaintiff's property was a sheet of water clear across; that the streets surrounding block 5 were flooded with water. One witness testified that there seemed to be a lake of water down First street (north of block 5) and Second avenue (east of block 5). Another...