Lewis v. Texas & N. O. R. Co.

• Decision Date: 12 December 1946
• Docket Number: No. 2687.,2687.
• Citation: 199 S.W.2d 185
• Parties: LEWIS v. TEXAS & N. O. R. CO.
• Court: Texas Court of Appeals

199 S.W.2d 185

LEWIS v. TEXAS & N. O. R. CO.

No. 2687.

Court of Civil Appeals of Texas. Waco.

December 12, 1946.

Rehearing Denied January 30, 1947.

Appeal from District Court, Falls County; Terry Dickens, Judge.

Action by W. H. Lewis against Texas & New Orleans Railroad Company to recover damages for injury to plaintiff's rented land and prospective crops from floodwaters flowing over defendant's embankment and railroad tracks. Judgment for defendant, and plaintiff appeals.

Affirmed.

Dodson & Reagan, of Marlin, for appellant.

Sewell, Taylor, Morris & McGregor, of Houston, Bartlett & Bartlett, of Marlin, and Baker, Botts, Andrews & Walne, of Houston, for appellee.

HALE, Justice.

W. H. Lewis sued Texas & New Orleans Railroad Company for damages on account of injury to his rented land and prospective crops located in the valley of Cow Bayou in Falls County alleged to have resulted from flood waters flowing over appellee's embankment and railroad tracks. Plaintiff charged defendant with negligence in the following particulars, viz: (a) in failing to provide sufficient bridges, culverts and other drainage structures under its railroad tracks so as to allow the flood waters of Cow Bayou to pass freely under the same, in accordance with the requirements of Art. 6328 of Vernon's Tex.Civ. Stats.; (b) in filling in the tressel on each side of the main stream of Cow Bayou, thereby reducing the drainage area under said railway; and (c) in failing to remove from his land the rails, cross-ties and rocks washed thereon by such overflow, in time for plaintiff to have planted his land in cotton for the year 1945.

Defendant answered with a general denial and affirmative pleas of due diligence and proper skill and care on its part in the construction and maintenance of its right-of-way, embankment, tressel, bridge and other openings under its tracks for drainage purposes. It further alleged that the damages complained of resulted solely from an extraordinary and unprecedented flood of waters through Cow Bayou which it could not have reasonably anticipated, that such damages were thus caused by an "Act of God" and that the same would have been suffered by plaintiff even though there had been no railroad embankment in that vicinity and even though defendant had made none of the changes in its drainage structures as complained of by plaintiff.

The case was tried before a jury. Upon the conclusion of all the testimony defendant seasonably presented an extensive motion for a peremptory instruction in its behalf based upon sixteen specific grounds, the substance thereof being that the evidence as a whole did not tender any controlling issue of fact for determination. Thereupon, the trial court sustained the motion, instructed the jury to return their verdict for defendant and rendered judgment accordingly. Plaintiff has appealed.

Under four points in his brief appellant says the court erred in directing a verdict for appellee because from the evidence as a whole: (1) "reasonable minds might have differed as to whether or not plaintiff's damages were the result of an unprecedented rain"; (2) "the jury could have concluded that by the exercise of diligence and care the defendant could have foreseen that such a flood as caused plaintiff's damages might occur"; (3) "even if the flood complained of was extraordinary and unprecedented, but if the defendant negligently failed to construct and maintain sufficient drainage structures under its railroad to allow the flood waters to freely pass under same and this negligence concurred with the unprecedented flood to cause plaintiff's damage, the defendant would still be liable for such damage"; and (4) "plaintiff had a right to have the question of whether or not defendant was negligent in allowing the rock, ballast, gravel, dirt and other substances deposited on plaintiff's land by the flood waters to remain on said land until it was too late for plaintiff to plant and harvest crops on said land for the year 1945." On the other hand, appellee says in effect that the trial court did not err in directing the verdict, among other reasons, because there was no evidence that it was guilty of actionable negligence in either of the particulars charged and because its affirmative defenses were conclusively established by the undisputed testimony.

It is elemental that when a case is tried before a jury the duty rests upon the trial judge to submit to the jury for its determination all ultimate, controlling issues of fact raised by the pleadings and tendered by the evidence. An issue of fact is tendered by the evidence when there is a dispute in the material testimony relating to such issue or when reasonable minds may differ in the ultimate conclusions of fact to be drawn from the undisputed evidence with respect thereto. But when there is no evidence tendering an issue essential to recovery, or when the competent testimony as a whole relating to one or more of the controlling issues is without any substantial dispute and is such that reasonable minds may not differ in the ultimate conclusions of fact to be drawn therefrom, it becomes the duty of the trial judge to withdraw such a case from the jury or to direct their verdict.

Art. 6328 of Vernon's Tex.Civ. Stats., enacted in 1876, provides as follows: "In no case shall any railroad company construct a road bed without first constructing the necessary culverts or sluices as the natural lay of the land requires, for the necessary draining thereof." This statute has been the subject of judicial construction many times. In the recent case of Fort Worth & D. C. Ry. Co. v. Kiel, 143 Tex. 601, 187 S.W.2d 371, 373, the Supreme Court, in a restatement of the law applicable thereto, said:

"If a structure placed over a stream does not obstruct the natural and ordinary flow of water of the stream, and an extraordinary and unprecedented flood occurs, of such a size as had not been known or heard of before, and which a person of ordinary care and prudence, under the circumstances, could not have foreseen or anticipated, no damage can be recovered for the injury caused by the extraordinary and unprecedented flood. Houston & T. C. R. Co. v. Walsh, Tex.Civ.App., 183 S.W. 18; Sabine & E. T. R. Co. v. Broussard, 69 Tex. 617, 7 S.W. 374; Gulf, C. & S. F. Ry. Co. v. Holliday, 65 Tex. 512; International & G. N. R. Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; Houston & T. C. Ry. Co. v. Fowler, 56 Tex. 452; Gulf, C. & S. F. Ry.. Co. v. Pomeroy, supra [67 Tex. 498, 3 S.W. 722].

"The rule of nonliability of a railway company or person for damages caused by an extraordinary and unprecedented flood is subject to the exception that negligence in constructing and maintaining a structure, concurring with an extraordinary and unprecedented flood and causing damage to another, makes the railway company or person liable for damages, notwithstanding the fact that the flood was extraordinary and unprecedented. 1 Tex.Jur. p. 700, § 5, and cases cited in footnotes; see also 1 Tex. Jur., p. 703, § 8; Galveston H. & S. A. Ry. Co. v. Riggs, Tex.Civ.App., 107 S.W. 589, 591; Id., 101 Tex. 522, 109 S.W. 864."

Twenty witnesses testified in this case. However, we find no substantial dispute in any of the voluminous testimony. Hence, in our opinion, a correct disposition of the appeal turns primarily upon whether or not reasonable minds might differ in the ultimate conclusions of fact to be drawn from the undisputed evidence relating to one or more of the controlling issues raised by the pleadings of the parties.

Appellee's right-of-way extends across Cow Bayou valley in a north-south direction, the creek flowing from west to east and emptying into the Brazos River. Its embankment, tracks and tressel were constructed by the San Antonio & Aransas Pass Ry. Co. (hereafter referred to as the railroad company) in the year 1889. As originally constructed, the embankment on each side of the tressel extended from hill to hill, a distance of approximately 4000 feet, varying in height to a maximum of approximately 9 feet, the tressel over the stream being 1390 feet in length. About ten years later there were heavy rains in that vicinity which caused considerable rise in the waters of Cow Bayou, resulting in litigation between the railroad company and adjoining property owners. See: San Antonio & A. P. Ry. Co. v. Kiersey, 98 Tex. 590, 86 S.W. 744.

In the early part of the year 1913, acting in cooperation with the adjoining landowners, the railroad company deepened and widened the channel of Cow Bayou creek, constructed a steel girder 100 feet in length over the stream and...