Houghtaling v. Chicago Great Western R. Co.

• Decision Date: 13 October 1902
• Citation: 91 N.W. 811,117 Iowa 540
• Parties: JAMES HOUGHTALING v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

91 N.W. 811

117 Iowa 540

JAMES HOUGHTALING v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 13, 1902

Appeal from Black Hawk District Court.--HON. F. C. PLATT, Judge.

ACTION to recover damages to plaintiff's property from flooding by water which was backed up in a stream by reason of the insufficiency of a culvert built by defendant over the stream in the construction of its railroad. Verdict and judgment for plaintiff. Defendant appeals.

Affirmed.

Miller & Williams for appellant.

W. A Graham and J. T. Sullivan for appellee.

OPINION

MCCLAIN, J.

The duty of the railroad company in constructing its road when it crosses a stream is to provide a passageway for the water reasonably sufficient to allow it to flow through without being backed up so as to cause damage to property. Sullens v. Railway Co., 74 Iowa 659; Willitts v Railway Co., 88 Iowa 281; Noe v. Railway Co. 76 Iowa 360. It is not bound to provide for unprecedented floods, but must anticipate and make provision for such floods as may occur in the ordinary course of nature. It must foresee and provide for unusual storms, such as occasionally occur, whether they be called ordinary or extraordinary. Cornish v. Railroad Co., 49 Iowa 378; Sullens v. Railway Co., supra. But the railroad company is not guilty of negligence in failing to provide for a flood which is not only extraordinary, but unprecedented and could not reasonably have been foreseen. Baltimore & O. R. Co. v. Sulphur Spring Independent School Dist., 96 Pa. 65 (42 Am. Rep. 529); Libby v. Railroad Co., 85 Me. 34 (26 A. 943, 20 L. R. A. 812); Missouri, K. & T. Railroad Co. v. Davidson,25 Tex. Civ. App. 134, (60 S.W. 278). And see Damour v. City of Lyons 44 Iowa 276; German Theological School v. City of Dubuque, 64 Iowa 736, 17 N.W. 153. There was evidence that the flood which resulted in the damage in question was due to a heavy, but not unprecedented, rainfall, and therefore the verdict must be sustained, unless there was error in the admission of evidence or in the instructions of the court. Defendant introduced evidence that in the construction of the culvert in question it acted upon the advice of competent and skillful engineers, and asked instructions to the effect that, having done so, it was not responsible for any damages due to insufficiency of the culvert. But this is not the rule governing the liability of railroad companies in such cases. The engineers whose judgment was relied on in the construction of the culvert were the servants of the defendant, and it will be liable for any lack of skill or of proper judgment in the particular case, no matter what their general skill or competency may have been. It was their duty, as servants of the defendant, to prepare a culvert sufficient for any flood not extraordinary and unprecedented. The instructions of the court as to this matter were as favorable to appellant as it had a right to ask. It is not the danger which a competent and skillful engineer does in fact anticipate, but that which, in the reasonable exercise of his skill, he ought to have anticipated, which the company is bound to provide for. Baltimore & O. R. Co. v. Sulphur Spring Independent School Dist., supra; Libby v. Railroad Co., supra. Counsel for appellant, however, rely upon cases holding that a city is not liable for damage to property from flooding by water resulting from the improvement of streets, the construction of sewers, etc., where the city council has in good faith adopted and followed the plans of competent engineers. Van Pelt v. City of Davenport, 42 Iowa 308; Hoehl v. City of Muscatine, 57 Iowa 444, 10 N.W. 830. But these cases are predicated on the view that in the exercise of its general duty to make public improvements the municipal corporation will not be chargeable with negligence, if, in acting, as it must, through the agency of others, it selects a competent agent to perform the duty required of it. Van Pelt v. City of Davenport, supra. No such principle is applicable to a private corporation chargeable with no duty to make an improvement, and doing so for its own special benefit. The authorities relating to the immunity of municipal corporations, where a plan prepared by a competent engineer has been adopted in good faith and...