Jones v. Seaboard Air Line Ry. Co.

• Citation: 45 S.E. 188,67 S.C. 181
• Parties: JONES et al. v. SEABOARD AIR LINE RY. CO.
• Decision Date: 21 July 1903
• Court: South Carolina Supreme Court

45 S.E. 188

67 S.C. 181

JONES et al. v. SEABOARD AIR LINE RY. CO.

Supreme Court of South Carolina

July 21, 1903

Appeal from Common Pleas Circuit Court of Kershaw County; Izlar Special Judge.

Action by Wiley L. Jones and others against the Seaboard Air Line Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

The following are the defendant's exceptions:

"(1) Because upon the motion for a nonsuit his honor the presiding judge should have taken judicial cognizance of the fact that the Wateree river is a navigable stream, so declared by the act of 1753 (7 St. at Large, p. 504), and should have held that the obstruction, if unlawful, would constitute a public nuisance, and that no action could be maintained by the plaintiffs, whose injuries, as alleged differ in degree only, and not in kind, from those of others along the stream, and should have granted the nonsuit.

(2) Because upon the motion for a nonsuit, it being in proof by the plaintiffs' testimony that the right of way was granted for valuable consideration by the plaintiffs themselves to the South Bound Railroad Company for its track and bridge, his honor should have held that the law presumes that they (the plaintiffs) contemplated the right of said company to erect its piers and bridges in any manner it thought best, provided it was not unusual, and should have held that the plaintiffs, having so conveyed the right of way, are held to have known the use that was to be made of it, and the angle on which the bridge should cross the river and to have assumed all risks incident to the location of the piers in the usual way for such bridge, and, there being no testimony to show that the piers were located in an unusual angle to the current of the river, his honor should have granted the nonsuit.

(3) Because upon the motion for a nonsuit it appears that the cribs in the stream were alleged and proven to have been built by the South Bound Railroad Company and abandoned. His honor should have held that the defendant could not be held for the consequences of allowing such piers to remain on its right of way until after demand for removal and refusal, of which there was neither allegation nor proof, and his honor should have granted the nonsuit.

(4) Because upon the motion for a nonsuit it appears that the piers themselves were erected by the South Bound Railroad Company his honor should have held that the defendant could not be held for the consequences of allowing them to remain on its right of way until after demand for removal and refusal, and of which there was neither allegation nor proof, and his honor should have granted the nonsuit.

(5) Because upon the motion for a nonsuit his honor should have held that flood waters are considered a common enemy and the defendant could not be held liable for damages resulting from the erection of the piers at such angle as did not result in the diversion of the water in the channel of the stream, even if they did cause a diversion of the water at unusual heights or floods, and should have granted the nonsuit.

(6) Because upon the examination of the witness B. B Williams in behalf of the defendant, upon the objection of the plaintiffs, his honor refused to allow the witness to testify in response to the question as to erosions above the bridge as follows, to wit, 'To what extent are these erosions?' The said question being intended to show that the freshets which are alleged to have caused the damage to plaintiffs' lands had caused similar damages above the bridge; therefore that the action of the river below the bridge had not been affected by the piers or cribs.

(7) Because upon the examination of the witness F. H. Barber, offered on behalf of the defendant, upon objection of the plaintiffs, his honor refused to allow the witness to testify as to the effect of the freshet of May, 1901, on the bottom lands along the Catawba river, in York county; said Catawba river being the same stream as the Wateree river, and it being the same freshet which it was alleged had caused the damage to plaintiffs' lands in Kershaw county.

(8) Because upon the examination of the witness F. H. Barber on behalf of the defendant, upon objection of the plaintiffs, his honor the presiding judge refused to allow the witness, who had stated his means of knowledge and of forming an opinion, to testify in response to the question, 'Do you think the water was thrown on that land by the obstruction afforded by the piers?'

(9) Because his honor charged the jury as follows, to wit: 'One whose lands are overflowed and injured by reason of sand, timber, and trees uprooted and carried thereon in consequence of the manner in which a railroad company builds a bridge across a natural stream or river, whereby the waters of the stream are contracted and diverted from their natural channel or course, and made to flow in the different direction from that which they were accustomed to do before the building the bridge and the obstruction of the stream by the piers thereof, and by allowing and permitting other obstructions built for temporary purposes to remain in the river and further obstruct the flow of the waters, may maintain an action against such railroad company for the injuries which he has sustained, as the company is presumed to know the habits of the stream on extraordinary occasions as well as ordinary occasions;' thereby indicating to the jury that, even though the railroad company might have been authorized under the laws of the state and the United States to build such bridge, and even though it might be necessary to erect piers in the bed of the stream, and even though they were properly erected, the landowner unavoidably injured thereby would have his cause of action.

(10) Because his honor charged the jury as follows, to wit: 'If the injury here complained of was caused by an extraordinary freshet, which could not be foreseen and provided against--in other words, was the act of God, and such act was the sole cause of the injury--then the proof of the fact would be a perfect shield, and the plaintiffs could not recover. But if the jury find from the testimony that there was negligence on the part of the defendant, which, if it had not been present, the injury would not have happened, notwithstanding the act of God in sending an extraordinary freshet in the Wateree river, the defendant would be responsible; and the burden is on the defendant to show, not only that the extraordinary freshet--or, in other words, the act of God--was the cause, but that it was the entire cause; for, as said in one of our cases, "It is only when the act of God is the entire cause" that the defendant can be shielded'--thereby indicating that the burden of proof was on the defendant to show, not only that the extraordinary freshet was the cause, but that it was the entire cause, of the injury to plaintiffs' lands; whereas, defendant submits, it being only a question as to what was the cause of injury, and not a question of the exemption of the defendant from some duty or obligation imposed upon him by law or contract, the burden was on the plaintiffs to show that the injury was caused by the negligence of defendant and not by the act of God.

(11) Because his honor charged the jury as follows, to wit: 'The same principle as decided in that case is applicable here. The onus, then, is upon the defendant to prove the absence of negligence, unless, as I have charged you, that the proof satisfies your minds that the act of God in sending an extraordinary freshet was the entire cause of the injury to the plaintiffs' lands, which, if so, would, of course, in itself show the absence of negligence'--thereby indicating that the burden of the proof was on the defendant, when, as claimed in the preceding exception, it was on the plaintiffs.

(12) Because his honor charged the jury as follows, to wit: 'A railroad company, in constructing its road over a natural stream, natural water course, should have openings sufficient to afford a free outlet or passage for all water, as well in times of ordinary freshets or floods and freshets as at other times; and the railroad company is not only liable in damages to persons injured by obstructions placed in a natural water course, and there maintained, or there negligently allowed to remain, but also for damages resulting from diverting the natural course of the stream'--thereby indicating that the defendant would be liable not only for damages caused by obstructions negligently placed or maintained in the stream, but also for damages resulting from the unavoidable diverting of the natural course of the stream.

(13) Because his honor charged the jury as follows, to wit: 'Although the railroad company constructed its piers and bridge prudently and in a scientific manner, yet, if the testimony satisfies your minds that it subsequently appeared that the construction was such that damages would result from the bridge and piers, and the railroad company could have averted this damage by reasonable effort, nevertheless failed to do so, it would, in my opinion, be liable'--thereby indicating that the defendant would be liable for damages resulting from the construction of its piers and bridge, although the same were constructed prudently and in a scientific manner, where it subsequently appeared that the construction was such that damages would result from the bridge and piers.

(14) Because his honor charged the jury as follows, to wit: 'A railroad company, as I understand the law, is bound to provide in the construction of its road against all injury and damages arising from ordinary floods and freshets. It is only relieved from its liability when it is shown that the flood or freshet was an unusual or extraordinary one--in

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