John W. Eagan v. Central Vermont Railway Co.
| Decision Date | 07 May 1908 |
| Citation | 69 A. 732,81 Vt. 141 |
| Parties | JOHN W. EAGAN v. CENTRAL VERMONT RAILWAY COMPANY |
| Court | Vermont Supreme Court |
January Term, 1908.
CASE for negligence. Plea, the general issue. Trial by jury at the March Term, 1907, Washington County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.
Judgment reversed, and judgment for the defendant to recover its costs.
C S. Palmer, and Plumley & Plumley for the defendant.
Present ROWELL, C. J., TYLER, MUNSON, and WATSON, JJ.
The plaintiff seeks to recover damages sustained by him on the 15th day of June, 1902, by the alleged reason of an insufficient culvert through a high railroad fill or embankment, and over the Eagan brook, so-called, in the town of Middlesex, whereby the water of the brook was obstructed and thrown back upon his land and buildings totally destroying some and injuring other of his property.
It appears that in the construction of the roadbed of the Vermont Central Railroad (the defendant's grantors) about the year 1848, a deep fill or embankment approximately 885 feet long and from sixteen to twenty-five feet high was made across the valley through which the stream in question flows a few rods south of where the plaintiff subsequently built his mill. The stream is about five miles long, runs southerly through a valley with precipitous banks, drains an area of about twelve square miles of hilly and mountainous country, is liable to very sudden rise of water by reason of the topography of the country which it drains, and empties into the Winooski river about 150 rods southerly of this embankment; that when the embankment was made an under-grade pass was built near the west end for the public highway, and some distance further east a stone culvert was made spanning the Eagan brook. The plaintiff's evidence tended to show that when made the culvert was of certain dimensions, but that in 1893 it had become so out of repair that it was torn down and a new one built having less capacity. It further appeared that at the time in question the plaintiff was in possession of the premises where the damage occurred northerly and up the hill from the culvert under a lease for ninety-nine years, had built a saw and grist mill and other buildings thereon some thirty or forty rods from the embankment, and had a large quantity of lumber piled on the land near and alongside of the stream; that soon after the heavy rains began on the night in question, the water came down the stream in such large quantities that the culvert was of insufficient capacity for it to pass through, by reason whereof the water was dammed up, and overflowed the plaintiff's lands and premises to a great depth, the pressure being so great as later to cause the embankment to give way, etc., resulting in the great damage to the plaintiff's property.
At the close of all the evidence the defendant moved that a verdict be directed in its favor for that, among other things, the undisputed evidence showed the rainfall and the flood caused thereby in the Eagan brook at the time in question were unprecedented and that the damages suffered by the plaintiff were the result of an act of God and not of any negligence of the defendant. The case will be considered on the exception to the overruling of the motion on this graund.
From the undisputed evidence it appears that in the evening of June 15, in the territory of the watershed of the Eagan brook, the rain fell in torrents,--a cloud-burst,--by reason whereof the volume of water running in that stream was so increased as not only to overflow its banks, but to spread out and run in currents on and over adjoining fields and meadows some of which were washed away leaving a bed of gravel and boulders, and some were covered with sand, gravel and boulders washed thereon, the boulders varying in size from small ones to those three or four feet across; that the public highway running parallel with the brook was washed away in many places, some of which for many rods became and hitherto has been the principal channel of the stream. Most if not all of the bridges over the stream were carried away, and in some...
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