Madisonville, H. & E.R. Co. v. Renfro

• Decision Date: 28 April 1910
• Citation: 127 S.W. 508
• Parties: MADISONVILLE, H. & E. R. CO. v. RENFRO.
• Court: Kentucky Court of Appeals

127 S.W. 508

MADISONVILLE, H. & E. R. CO. v. RENFRO.

Court of Appeals of Kentucky.

April 28, 1910

Appeal from Circuit Court, Ohio County.

"Not to be officially reported."

Action by W. H. Renfro against the Madisonville, Hartford & Eastern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Glenn &amp Simmerman, Benjamin D. Warfield and C. H. Moorman, for appellant.

Heavrin & Woodward, for appellee.

CARROLL J.

In this action the appellee, Renfro, sought to recover from the appellant company damages growing out of its negligence in so constructing the embankment for its line of railway as to obstruct the natural flow of water which was thereby caused to stand in July, 1909, upon land owned by appellee, and upon which various crops then being cultivated by Renfro were growing. In the answer, after controverting the material averments of the petition, it was affirmatively stated that the land overflowed was low bottom land on Rough river, and that during the time of the overflow there was an unusual rise in Rough river caused by unprecedented rains that caused the waters of Rough river to overflow the bank, and that the land would have been overflowed to the same extent if its embankment had not been where it was. Upon a trial, damages in favor of appellee were assessed at $500, and judgment entered for this amount. A reversal is asked upon the ground (1) that the verdict is flagrantly against the evidence; (2) that the damage was done by extraordinary and unusual floods arising from excessive rainfall; (3) that the damage complained of was considered in the amount allowed Renfro in the proceedings in which the company sought to and did condemn the land of Renfro for the purpose of constructing its railroad; (4) error of the court in permitting opinion evidence as to the value of the crops destroyed and the amount of crops that would have been destroyed if the embankment had not obstructed the flow of water; (5) a new trial should have been granted on the strength of the affidavits filed in connection with the motion for a new trial showing that one of the jurors was prejudiced against the company; and (6) for error in instructions. There is no doubt from the evidence that the crops of appellee were badly damaged by the water, and the award of the jury was not unreasonable. Nor can it be said that it was flagrantly against the evidence.

The chief contentions of fact made by appellant are that the rainfall that caused the rise of Rough river and the overflowing of the land was unprecedented in that neighborhood, and such a one as would have damaged appellee to the extent claimed if the embankment had never been erected. It is very clear from the evidence that the rain that caused the flow was an unusual one at that time of the year. Generally, the heavy rains fell in the spring; and this rain was not unprecedented so much, on account of the volume of water as of the time of year that it happened. But, be this as it may, the jury were expressly told that "if they believed from the evidence that the overflows complained of in the petition were caused by extraordinary rains or floods--that is, such floods or rainfalls as were of unusual occurrence in that vicinity at that time of year--and could not have been anticipated by persons of ordinary experience and prudence engaged in the business defendant was engaged in, they should find for defendant." This instruction was more favorable to appellant than it was entitled to. In the construction of improvements like the one in question the person erecting them must take notice of floods and rainfalls that may occur in that vicinity without reference to the particular time in which heavy rains may fall. The time that heavy rains may come is not so material as the fact that they do come. The rain that damaged appellee was unprecedented for July, but in the winter and spring such rainfalls and floods were not uncommon, and the company in the construction of its embankment was required to take...