McCleneghan v. Omaha & R. V. R. Co.

• Decision Date: 04 January 1889
• Citation: 25 Neb. 523,41 N.W. 350
• Court: Nebraska Supreme Court
• Parties: MCCLENEGHAN v. OMAHA & R. V. R. CO.

25 Neb. 523

41 N.W. 350

MCCLENEGHAN

v.OMAHA & R. V. R. CO.

Supreme Court of Nebraska.

Jan. 4, 1889.

Syllabus by the Court.

1. Instruction set out at length in the opinion examined, and held erroneously given.

2. A railroad corporation, although authorized by law to construct its road across a stream, is liable for damage done to lands adjacent thereto by the construction of a bridge, which causes the water and ice to gorge and overflow such land; and in the selection of the character of bridge to be built due regard must be had to the rights of the adjacent land-owners, as well as to the safety of the public who may travel over its road, or who may require the use of the same for the transportation of property.

Error to district court, Saunders county; POST, Judge.

Action by Samuel McCleneghan against the Omaha & Republican Valley Railroad Company for damages to plaintiff's land. From a judgment for defendant, plaintiff brings error.W. H. Munger and E. F. Gray, for plaintiff in error.

J. M. Thurston and W. R. Kelly, for defendant in error.

REESE, C. J.

This action was instituted in the district court of Saunders county for the recovery of damages resulting from the alleged negligent construction of the railroad bridge of defendant in error across the Platte river, by which an unlawful obstruction is alleged to have been erected in the river, which prevented the natural flow of the ice and water therein, and caused the ice and water to gorge, back up, and overflow the banks of said river, to the injury of plaintiff's farm and the property thereon. A jury trial was had, which resulted in a verdict and judgment in favor of defendant in error, who was defendant below, and from which plaintiff brings the case to this court by proceedings in error. A large mass of testimony was submitted to the jury, about 80 witnesses having been examined, and in which there was a sharp conflict upon almost every question at issue in the case. The preponderance of the evidence was largely in favor of defendant, and will not be examined further than to say that the verdict of the jury was clearly supported thereby. The case is presented solely upon errors of law occurring at and after the trial, and it is argued that, even though the preponderance of evidence was against plaintiff, yet he had the right to have the case fairly submitted to an impartial jury, whatever the testimony might be. A large number of errors are presented, but few of which will be examined, as the same questions will not likely arise upon a retrial, should one be had.

From the testimony introduced, and from the instructions asked by the parties to the action, it plainly appears that the case was presented to the jury upon these two theories contended for by the parties to the trial: On the part of plaintiff it was contended that the bridge was so constructed as to unnecessarily impede the flow of the river, and thereby cause the water and ice to dam up and gorge above the bridge, which necessarily resulted in an overflow of the land owned by plaintiff, opposite and below the gorge; while, upon the other hand, it seems to have been contended by defendant that the highest obligation resting upon it in the construction of the bridge was that of its safety and use in the general requirements of railroad traffic.

Edmund Lane, the engineer who constructed the bridge, was called as a witness for defendant. He testified that his occupation was that of a civil engineer; that he had followed that profession about 20 years, 19 of which had been in the state of Nebraska. He testified as to the history and habits of the Platte river, having had a general knowledge of it since 1871 or 1872, and having constructed seven or eight bridges across it during the time referred to. That in the construction of a bridge across a river similar to the Platte, the first and primary consideration would be to provide for the passage of the water, and to avoid obstruction of ice, or driftwood, or any other things which might be expected from the general character of the stream; and next, the strength and durability of a bridge required for the traffic. We quote briefly from his testimony, as follows: “ Question. Taking into consideration the state of engineering, skill, and knowledge as it existed in 1876, (the time of the construction of the bridge in question,) together with such knowledge of the history and habits of the Platte river as it was then known, what, in your opinion, was then the best and safest character of structure to be erected across Platte river in that place? Answer. I should think a pile and stringer bridge was sufficient for all requirements, for the passage of ice and water, and any other obstruction, and also for the requirements of the traffic. Q. In the construction of a pile and stringer bridge, what is the practical limit of the length of a span? A. About twenty feet. Q. What is the result if a longer span than twenty feet be admitted in a pile and stringer bridge. A. It would have to be trussed. You could not get timber long enough to carry the weight. Q. What is the difference in the use between a twenty or twenty-four,--what is the objection to a large span as to safety or stiffness? A. The objection to a longer span is the shock that the rolling train gives--a wave motion--to it, which is bad for longer timber. Q. Can a pile and stringer bridge, practical therefor, be constructed with greater spans than twenty feet? A. Not with safety, for a railroad bridge. Q. If longer spans be adopted, what is the character and sort of bridge? A. A truss bridge. Q. Which, between a truss bridge and a pile and stringer bridge,--having reference to the safety in its use, and of general requirements of railroad traffic,--which is the better sort of bridge? (Objected to as incompetent, immaterial; overruled; exception.) A. For wooden structures I think the pile and stringer bridge the safest. Q. What is the general character of the Platte river as to the permanency of its channel,--that is, as to the permanency of its channel in a given place? A. It is not permanent; it is movable. Q. What was its character at Valley in 1886, as to the establishment of its channel at a given place? A. There was no permanent channel; it was always shifting. Q. Does the fact that the channel is a shifting one, that is, moving from place to place, within its banks, have any effect in determining the character of bridge to be erected there,--as to whether it should be a truss bridge or pile and stringer? A. Taking the Platte river and its characteristics, with the channel as wide, and no defined channel, I prefer a stringer bridge to a truss bridge. If it was a place where the channel was defined in one place, you might generally build a truss bridge for the flow of ice to pass through.”

We copy the following from the cross-examination: “ Question. Now, I understand you to say that you regarded a pile and stringer bridge a safer structure than a truss bridge. Wherein is it a safer bridge for the passage of traffic? Answer. It is easier constructed, and it is safer on account of derailment. On account of derailment we generally have guards along on the outside of the bridge, and the car may cross the bridge and get off; but with the truss bridge, if a car got a little to one side, it might strike the truss and knock it down. Q. If a car should run off from the track while crossing the bridge, and you had the truss up, it would be likely to strike against the truss, and knock it out of place? A. Yes sir, and knock some of its members out. Q. If you did not have the truss there, would it not be likely to go into the river? A. It might go, but we have out guards on the side for protection. Q. How high guards? A. We use six by eight timbers. Q. That is so the wheels would not run off? A. Yes, sir. Q. These guards are not put outside the iron rails? A. Yes, sir; and sometimes the inside had guards too. Q. They are placed how far from the iron rail? A. About a foot or eighteen inches. Q. That is, so that if the car got off, the wheels would not run over, and get off the bridge? A. That is mostly the object; yes, sir. Q. Could you not have that guard on a truss bridge just the same? A. We do it on truss bridges just the same. Q. Then, if you do it on a truss bridge, and that guard keeps the car from going outside of it, then it would not strike the truss, would it? A. The top of the car gets slued around so it is very apt to knock the truss. I have known them to knock down truss bridges that way, and I have known them to go across trestle bridges that way. * * * Q. Truss bridges have been in use by railroads, have they not? A. Yes, sir. Q. They are in use still to-day, are they not? A. Yes, sir. Q. Constantly being used? A. Yes, sir. Q. Are they not regarded as practicable? A. Yes, sir. Q. And were regarded before 1876 as practicable, were they not? A. Yes, sir.” This must serve to indicate, to some extent, what was the contention of ...