Illinois Cent. R. Co. v. Wright

• Decision Date: 07 April 1924
• Docket Number: 23637
• Citation: Illinois Cent. R. Co. v. Wright, 100 So. 1, 135 Miss. 435 (Miss. 1924)
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. WRIGHT. [*]

100 So. 1

135 Miss. 435

ILLINOIS CENT. R. CO. v. WRIGHT. ^[*]

No. 23637

Supreme Court of Mississippi

April 7, 1924

Division B

Suggestion of Error Overruled May 26, 1924.

1. WATERS AND WATER COURSES. Railroad's failure to provide passageway for water held not proximate cause of injury.

Where owner of land adjacent to railroad's right of way permitted creek, constituting a natural drain of his land on other side of right of way, to become filled with logs and debris, the railroad was not liable for damage to crops on such owner's land on other side of the right of way, by reason of its failure to provide a passageway for the water across right of way, since such failure on the part of the railroad was not the proximate cause of the injury, inasmuch as the drainage would have been obstructed by owner's own failure to keep ditch open, even if railroad had provided for adequate drainage across its right of way.

2 NEGLIGENCE. "Proximate cause" of injury.

Nothing can be deemed the "proximate cause" of an injury unless had it not happened, the injury would not have occurred.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of De Soto county, HON. GREEK L. RICE, Judge.

Action by F. R. Wright against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Judgment reversed.

May, Sanders, & McLaurin, for appellant.

The peremptory instruction requested by defendant should have been given:

(a) The wrong complained of consists in what is termed an original or permanent injury, if any, giving rise to a cause of action by the owner of the land at the time the culvert was constructed in 1860. The appellee, as purchaser of the land in 1910 took the land subject to a condition which was fixed and permanent. 8 R. C. L., secs. 44 and 93; Board of Directors v. Barton, 133 Am. St. Rep. 191; City of Richmond v. Gentry, 136 Am. St. Rep. 255; Am. Locomotive Co. v. Hoffman, 128 Am. St. Rep. Note beginning at page 957; Powers v. Council Bluffs, 24 Am. Rep. 792; Chicago & Eastern R. Co. v. Loeb, 59 Am. Rep. 341; Boise Valley Cons. Co. v. Kroeger, 28 L. R. A. (N. S.) 968. The facts in the instant case bring it squarely within the principles announced by the various courts above.

As was said in the case of Board of Directors v. Barton, supra, no cause of action ever existed in favor of this appellee. He bought the land in its damaged condition, if it was damaged, and presumably the price he paid was fixed with reference to this condition. The culvert had been in existence for sixty years and was obvious to the appellee when he bought the land and when he planted his crops.

(b) If the plaintiff ever had a cause of action, he had it in 1910, when he bought the land, because there has been no change in the condition of the culvert since his purchase. He claimed in his declaration that his land was permanently injured. If it was permanently injured, it was because of that which was done more than ten years prior to the time of the commencement of this action. The plaintiff testified that he bought this land in 1910, and the record shows that he commenced this action in 1922, and whether the six or ten years statute of limitation is applicable, his cause of action is barred. For this reason the peremptory instruction should have been granted.

(c) The plaintiff in his declaration claimed that his land was permanently injured because of alleged improper construction of the culvert. The plaintiff's witness, McClesky, civil engineer, testified that the culvert was improperly constructed, because it was lower than the land on the west side of the railroad. The plaintiff, to support his claim for permanent injury to the land, testified over the defendant's objection, to his estimate of damage to his crop. Plaintiff elected to sue for permanent injury to the land. To support that claim, if actionable injury was shown, proof should have been adduced of the value of the land before the injury, and its value after the injury. There is no evidence at all in the record to support this claim. The plaintiff wholly failed to make out his case on this, and the peremptory instruction should have been given; or at most, if plaintiff was entitled to anything he was entitled only to nominal damages.

(d) The testimony for both the plaintiff and the defendant showed that the railroad culvert was ample to carry the water conducted to it by the drainage ditch on the plaintiff's land east of the railroad, but that the ditch on the plaintiff's land west of the railroad was wholly inadequate and insufficient, and that this condition of the plaintiff's ditch caused the overflow. The witnesses estimated the plaintiff's west side ditch as being anywhere from one to five feet higher than the bottom of the culvert, and that what should have served as a ditch, from the culvert out, was in effect a dam to prevent the flow of the water.

The admitted situation is that the flow of water is from east to west and that from the east line of its right of way to a point within fifteen or twenty feet of the west line of its right of way the railroad company had provided a channel amply sufficient for the passage of water, but that this channel had largely filled up for the last (west) fifteen or twenty feet of the distance across the right of way. From the west side of the right of way westward the land belongs to the plaintiff, and exactly the same obstruction to the passage of water exists on that land two or three hundred feet as exists on the west twenty feet of the right of way.

The trial court instructed the jury, in effect, that the railroad company was liable for having failed to provide a passageway for the water the entire width of the right of way, even though no passage for the water existed beyond the right of way. It is our view that the error in the charge of the learned trial judge is manifest upon a consideration of recognized principles of law.

One principle is that a particular act is never the proximate cause of a condition or result where such condition would have come about if the particular act had never occurred. 1 Thomp. Neg., sec. 56. "Where several proximate causes contribute to an accident and each is a sufficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause unless, without its operation, the accident would not have happened." Ring v. Cohoes, 77 N.Y. 83; Erghott v. New York, 96 N.Y. 282; Pa. R. Co. v. Aspell, 23 Pa. St. 147; Trow v. Vermont Cent. R. Co., 24 Vermont 487; M. & O. R. Co. v. Nynum (Miss.), 15 So. 795; Railroad v. Maxwell, 126 Tenn. 328.

Wells, Stevens & Jones and Francis Harmon, for appellee.

I. The Plaintiff has a Good Cause of Action. The leading case on this entire subject is Sinai v. The Railroad Company, 71 Miss. 547. See, also, Canton Railroad Company v. Paine, 19 So. 199; Mississippi Central Railroad v. Carruth, 51 Miss. 77; Railroad Company v. Wilbourn, 74 Miss. 278; A. & V. Railroad v. Daniels, 108 Miss. 68; Thompson v. Railroad Company, 104 Miss. 658; Yazoo & Mississippi Valley Railroad Co. v. James (1918), 79 So. 65.

II. The company negligently failed to properly ditch the twenty feet of right of way at the emptying end of the culvert, thus allowing a natural dam at that point to stop the flow of water through the culvert and throw back the water upon the growing crops of the plaintiff to the east.

It is vigorously insisted by the appellant that the plaintiff was likewise negligent in failing to properly ditch his land west of the right of way. This item is easily disposed of. Assume that the plaintiff had ditched his land from the bridge where it touches the right of way to the full width of this western strip. It matters not how deep the ditch; it matters not how wide the canal was constructed, so long as the intervening twenty feet between the mouth of the culvert and the beginning of such a ditch or canal on the plaintiff's land remained filled with five feet of soil and debris unditched and undrained, this twenty-foot barrier would serve most effectively as a dam. The company was under a duty to properly drain its own lands and the proximate cause of plaintiff's injury was clearly the improper maintenance of the culvert five feet too deep and the existence of the twenty-foot dam at its mouth.

Upon neither of these causes did plaintiff have the slightest control in the world. It was impossible for him to raise the culvert; he had no legal right to go on the right of way and ditch the twenty feet owned by the company, extending from the mouth of the culvert to the plaintiff's own land, and unless and until this twenty-foot obstruction was properly cared for, nothing that the plaintiff could do on his land to the west would remedy the situation. The effort, therefore, to cast the burden on the plaintiff must be unavailing. From the Mississippi cases cited it is clear beyond successful contradiction, that the plaintiff has a good cause of action and that his case was properly limited to recovery for injury done to growing crops. The decisions in other states are in accord with our own. Stith v. L. & N. Railroad Company, 109 Ky. 168, 58 S.W. 600; Bourdier v. Morgan's Railroad Company, 35 La.Ann. 947; Baltimore Company v. Hackett, 87 Md. 224, 39 A. 510.

III. The Plaintiff's Right of Action as set Forth in his Declaration, and as Tried before the Jury, is not Barred by any Statute of Limitations. Appellant in its brief fails to distinguish between injuries of a permanent and of a recurrent nature. The gravamen of the plaintiff's charge is that growing crops were injured, as the result of the negligence of the defendant, and...