L. & N. R. Co. v. Conn.

• Decision Date: 26 February 1918
• Citation: 179 Ky. 478
• Parties: Louisville & Nashville Railroad Company v. Conn.
• Court: Kentucky Court of Appeals

Page 478

179 Ky. 478

Louisville & Nashville Railroad Company v. Conn.

Court of Appeals of Kentucky.

Decided February 26, 1918.

Appeal from Garrard Circuit Court.

J. E. ROBINSON, SHELBY, NORTHCUTT & SHELBY, BENJAMIN D. WARFIELD and LEWIS L. WALKER for appellant.

EMMET PURYEAR, ROBERT HARDING, ROBERT TOMLINSON and JAMES I. HAMILTON for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Affirming.

This is the second appeal of this case, the opinion on the first one being reported in 166 Ky. 327. It is a suit brought to recover damages to the property of the appellee, who was plaintiff below, caused by the water from Paint Lick creek overflowing his premises which he alleges was produced by the improper construction of a bridge across the creek which the defendant constructed in July, 1909, for its railroad track. Plaintiff recovered a verdict upon the first trial for $2,000.00, upon which judgment was rendered, and that judgment was reversed in the opinion, supra, upon the sole ground that the testimony heard upon the first trial showed that the flood producing the damage (which flood occurred in March, 1913) was an unusual and unprecedented one which the defendant could not reasonably anticipate, and that its bridge of which complaint is made was so constructed as to provide for the escape of water from usual and ordinary rains. The opinion expressly refrains from considering any other question. Upon the last trial there was a recovery in favor of plaintiff for the sum of $1,000.00, and from the judgment rendered in his favor for that sum defendant prosecutes this appeal, urging numerous grounds in its motion for a new trial against the correctness of the judgment. The grounds insisted upon here and discussed with earnestness in brief of counsel are (1) that the court should have sustained defendant's motion for a peremptory instruction in its favor; (2) error of the court in giving and refusing instructions, and (3) error in the admission of evidence offered by plaintiff over the objections of the defendant.

Practically three-fourths of the brief for defendant is taken up with a discussion of the first ground mentioned, it being earnestly insisted that the evidence upon the last trial on the issues passed upon in the first opinion was substantially the same as upon the first trial, and that as a consequence, under the well-known rule of practice both in this and other jurisdictions the first opinion is the law of the case, and the motion for the peremptory instruction should have been sustained. There can be no controversy upon this point, and if the premises of defendant's counsel be correct, there can be no doubt but that his conclusions are also, and that the judgment is erroneous and should be reversed. The premises referred to are whether the testimony heard upon the last trial upon the contested points was substantially the same as that heard upon the same points at the first trial. It therefore becomes necessary to make a brief resume of the testimony heard upon the last trial which was not heard upon the first one. What the proof tended as a whole to establish upon the first trial is substantially set out in the first opinion and which it will not be necessary to repeat here except to say that practically the same testimony was introduced upon the second trial. Our comparison of the number of witnesses who testified upon the two trials reveals that upon the last trial twenty-six additional witnesses were introduced by the plaintiff, practically all of whom testified to substantive facts bearing more or less directly upon the issues involved, while defendant introduced upon the last trial eleven additional witnesses. It is not necessary nor would it scarcely be possible to name seriatim the witnesses who testified upon the last trial and who did not testify on the first one, or to discuss their testimony in detail, since such a course would unduly lengthen this opinion and would not subserve any useful purpose either to the immediate parties to this suit or to the better establishment of the legal principles involved. We will therefore deal with this additional testimony only in a general way, but sufficiently to illustrate the conclusions which we have reached.

Upon the conditions of the complained of bridge and its alleged improper construction it was shown on both trials generally that two additional stone piers were put into the creek when the bridge was constructed in 1909, and that additional abutments were built encroaching upon the channel of the creek. Maj. S. F. Crecelius testified upon the last trial for the first time as a witness for plaintiff. He is shown to be a graduated civil engineer of twenty-four years' actual experience, a great deal of which has had to do with hydraulic engineering. He has been and is now connected with the Federal Government in that department of work and has had extensive experience in the construction of levees and dams and in looking after the improvement of rivers and harbors. He went upon the ground and ascertained the watershed of Paint Lick creek above the bridge, which extends up the creek for a distance of about six miles, and is practically that distance across from one side to the other. He also ascertained the geological as well as topographical condition of the watershed. He showed from government records that in that vicinity, including the territory covered by the watershed, rains occurring every two or three years would produce a rainfall of an inch and a quarter per hour, and we find nothing in the record to show that the 1913 flood complained of was any greater than this. In fact the calculations made by the civil engineers for both parties seem to be based upon those figures. The witness testified that according to the rules for making such calculations for a maximum run-off of a rain of any length of duration producing a fall of one and one-quarter inches per hour Paint Lick creek at the bridge would deliver 7,409 cubic feet of water per second, running at the velocity of 4.26 feet per second which he calculated under the same rules that it would travel; that the number of cubic feet which the area under the bridge after deducting the space occupied by the extra piers and other obstructions, would carry was only 6,697 cubic feet of water per second, or 712 cubic feet less than would be delivered at the bridge by recurring rains of every two or three years. Five hundred and fifty feet above the railroad bridge he measured a cross section of the creek and found that at that place 12,017 cubic feet of water would pass it per second within the banks, which is 5,440 cubic feet more than the capacity of the bridge, according to this witness. He furthermore said that the backing up of the water above the creek was caused by the small area of the opening under the bridge, and that the breaking of the levee and consequent overflow were, according to his opinion, due to the reduced area under the bridge and the holding back of (according to his calculation) 712 cubic feet of water per second. The method by which the witness Crecelius arrived at his calculations, and to which he testified, as we understand from the record is the same as is recognized by all engineers and is according to the known rules of that branch of mathematics.

It is insisted by the expert civil engineers who testified for the defendant that the witness Crecelius wrongfully assumed some of the factors entering into his calculations, such as "the coefficient of roughness," the "wetted perimeter," "the sloping of the stream" and others not necessary to mention. But as these were ascertained from the local conditions which each engineer calculated for himself, this dispute raises an issue of fact which it is not for this court to determine. There is abundant testimony that the plaintiff's premises were flooded when the water which had been backed up from the bridge broke over the levee and was precipitated upon the town of Paint Lick with great suddenness, and as Crecelius says that the backed-up condition of the water was due to the defective construction of the bridge, it is impossible for us to see why this testimony did not materially and substantially change that heard upon the first trial and therefore raise an issue of fact material to the case, and which went to the very foundation of it, and which it was eminently proper to submit to a jury.

The testimony of many of the other new witnesses for plaintiff heard upon the last trial bore upon the question as to whether the rain of 1913 was or not unusual. We do not find in the record for what length of time that rain fell, but a number of new witnesses living upon the headwater of Paint Lick creek and tributaries thereto above the bridge testified that other rains in the years 1905 and 1909 were not only equal to the 1913 rain, but even greater than that one. It was also shown by other additional or new witnesses that the floods of 1905 and 1909, after getting below Paint Lick for about three miles, were each higher than the 1913 flood, it being explained that the latter flood for that distance was due to the great precipitation of the water below the bridge when the levee broke letting it through and for the distance of about three miles below the water...