Krichau v. Chicago, B. &. Q.R. Co.
| Decision Date | 10 December 1948 |
| Docket Number | 32429. |
| Citation | 34 N.W.2d 899,150 Neb. 498 |
| Court | Nebraska Supreme Court |
| Parties | KRICHAU v. CHICAGO, B. & Q. R. CO. |
Syllabus by the Court.
1. A motion for a directed verdict must, for the purpose of a decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the facts in evidence.
2. In an action for damages to land and growing crops by floodwaters of a stream, subject to overflow from natural causes, and which it is alleged were thrown upon the plaintiff's land by the negligent and improper construction of a railroad near by and adjacent thereto, the burden of proof is on the plaintiff to show that the construction complained of either caused such overflow or increased the same, or in some manner contributed thereto.
3. An act of God is such an unusual and extraordinary manifestation of the forces of nature that it could not under normal conditions have been reasonably anticipated or expected.
4. If the evidence essential to a recovery by plaintiff is clearly disproved by the physical facts and conditions, the trial court should direct a verdict against him.
5. In every case, before the evidence is submitted to the jury there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.
Blackledge & Sidner, of Kearney, for appellant.
W P. Loomis, of Omaha, E. L. Randall, of Kearney, and J. W. Weingarten, of Omaha, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is an action at law to recover a money judgment for damage to plaintiff's land and crops which he claims was caused by the negligence of the defendant. At the conclusion of all of the evidence the defendant moved for a directed verdict. The trial court sustained the motion and dismissed the plaintiff's petition. Upon the overruling of a motion for new trial, plaintiff perfected this appeal.
The case was tried and determined upon the sufficiency of the plaintiff's evidence to establish negligence on the part of the defendant as constituting the proximate cause of damage sustained by the plaintiff.
The plaintiff predicates error on the part of the trial court in sustaining the defendant's motion for a directed verdict, contending the evidence was sufficient to warrant the trial court in submitting the case to the jury.
For convenience, the appellant will be referred to as the plaintiff as originally designated, and the appellee as the defendant.
This jurisdiction is committed to the rule: 'A motion for a directed verdict must, for the purpose of a decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the facts in evidence.' Halliday v. Raymond, 147 Neb. 179, 22 N.W.2d 614, 615.
With the foregoing rule in mind, we review the evidence to determine whether or not the trial court erred as contended for by the plaintiff.
The record shows that the plaintiff, for more than three years, has been the owner and in possession of the northeast quarter and that part of the southeast quarter lying north of the defendant's right-of-way, and that part of the west half of Section 7 lying north of the defendant's right-of-way, all in Section 7, Township 12 North, Range 14, in Buffalo County. The plaintiff has been familiar with the land in question for 30 years. The south boundary of the land is the defendant's railroad and the west boundary is Muddy Creek or Beaver Creek; boty names refer to the same stream. Muddy Creek extends from its mouth, located about three miles below Section 7, in a northwesterly direction about 60 miles to a point beyond Broken Bow, Nebraska, with several tributary streams.
At the southwest corner of the plaintiff's land there is a railroad bridge across Muddy Creek which, prior to June 21 or 22, 1947, consisted of a steel girder 75 feet in length spanning the channel of the stream. This bridge was supported by piers at each end with three concrete slab approach spans, each 16 feet in length, at each end of the girder, supported by concrete piling, giving an over-all length of 170 feet, with a clearance of 16 feet from the bottom of the girder to the surface of the water at low stage. This bridge runs in a northwest and southeast direction. The width of the channel immediately adjacent to the bridge is about 50 feet. The channel is 15 to 18 feet deep on both sides of the bridge and runs northeast under the bridge.
According to the plaintiff's testimony Muddy Creek runs on both sides of his land and follows a regularly defined course. The depth of the water in ordinary times is from two to two and a half feet. Muddy Creek flows under the railroad bridge in a northeasterly direction, and crosses the plaintiff's land in a northeasterly direction up to a point where a draw from the north enters such land; from there it flows southwest and a little to the west; then proceeds east and again northeast making what is called a horseshoe loop; then proceeds again to the railroad near the east line of the plaintiff's land and leaves his land. The 15 acres of land involved in this litigation is in the extreme southwest corner of the plaintiff's farm, and prior to June 21, 1947, was black sandy loam and under cultivation. It is located on the downstream side and northeast of the railroad bridge. About one mile west of this land is a sand deposit.
Half a mile west of plaintiff's land is a channel which is referred to as an 'abandoned' channel, nearly a mile in length. In closing the abandoned channel, the culverts were left in. It appears from exhibit No. 18, which is a map drawn to scale by a civil engineer, that the stream formerly flowed north across the location of the railroad, then east, then south, then southwest recrossing the railroad, and then west to the present channel.
In 1886, the defendant constructed its line of railroad from Ravenna west approximately 50 miles, in the valley of Muddy Creek on a right-of-way 100 feet in width in Section 7 heretofore referred to. Ravenna is in the immediate vicinity of the plaintiff's land.
The total drainage area of Muddy Creek from the headwaters to where it empties into the Loup River, is approximately 755 square miles. The creek meanders from north to south across the valley practically all the distance, and has a crooked, winding channel with the banks of the creek heavily overgrown with brush and trees. The valley varies in width from 1,000 feet in some places to three-quarters of a mile in others. The general direction downstream is from northwest to southeast. About 12 miles west of Section 7, Clear Creek, a tributary, enters into Muddy Creek from a northwesterly direction. The average width of the natural channel of the stream is approximately 70 feet, with an average depth of 18 feet.
In times of high water, the waters were naturally inclined to follow the old channel, or what has been referred to as the abandoned channel, and the drainage from the northwest, constituting a 1,400-acre drainage area, was inclined to stop or backwater on the north side of the defendant's right-of-way substantially in the same area as outlined by the original channel. This constituted a continuing threat against the defendant's right-of-way, the seepage and drainage being towards the right-of-way.
Following a heavy storm in 1924 resulting in a wash-out of the railroad by water draining into the abandoned channel, the defendant in 1925, in order to provide...
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