Missouri Pac. R. Co. v. Nichols

• Decision Date: 25 January 1926
• Docket Number: (No. 121.)
• Parties: MISSOURI PAC. R. CO. v. NICHOLS.
• Court: Arkansas Supreme Court

279 S.W. 354

MISSOURI PAC. R. CO. v. NICHOLS.

(No. 121.)

Supreme Court of Arkansas.

January 25, 1926.

Appeal from Circuit Court, White County; E. D. Robertson, Judge.

Action by W. H. Nichols against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Thos. B. Pryor, of Ft. Smith, and H. L. Ponder, of Walnut Ridge, for appellant.

Brundidge & Neelly, of Searcy, for appellee.

HART, J.

The complaint in this case was filed by W. H. Nichols against the Missouri Pacific Railroad Company on December 26, 1923, and alleges that the growing crops of the plaintiff on his farm on Overflow creek were destroyed on the 15th day of May, 1923, by water backed on them by the defendant's embankment, and that the damage to his crops was caused by the lack of sufficient openings in the defendant's roadbed, where its line of railroad crosses Overflow creek and the adjacent sloughs running into it.

The answer denies the negligence charged, and denies that the crops were destroyed in the manner alleged in the complaint. The case was tried by a jury, which returned a verdict for the plaintiff in the sum of $850, and the defendant appeals from a judgment for this amount. The principal reliance for a reversal of the judgment is that the evidence is not legally sufficient to sustain the verdict.

According to the evidence for the plaintiff, the roadbed of the defendant crossed Overflow creek adjacent to the land of the plaintiff. An opening 120 feet wide was left in the road embankment for the passage of the surface water from the adjacent territory which flowed into Overflow creek. Overflow creek was straightened and used as a drainage ditch, and the 120-foot opening in the embankment of the railroad through which the waters of Overflow creek flowed was closed up, and there was left in its place a 4-foot concrete box through which the waters might flow. There was a slough just north of this place where the waters from Overflow creek also flowed through the embankment of the railroad, and the railroad company deposited large blocks of concrete in the slough in order to hold the piles in the trestle in place, and this obstructed the flow of the water from Overflow creek and the surface water from the adjacent lands. There was a rain on the morning of May 15. 1923, and the obstruction in question caused the waters to back upon the land of the plaintiff and destroy a strawberry crop of 9 acres and a 3-acre hayfield.

On the part of the defendant it was shown that the openings left in the embankment forming the roadbed of the defendant were sufficient to carry all the water which flowed into them from Overflow creek and the territory adjacent thereto. The defendant introduced evidence tending to show that there was an unprecedented rainfall, and that the damage in question was not caused from the backwater of Overflow creek, but was caused by flood water which came down it on account of changing it into a drainage ditch.

The statute authorizes the building of railroads across water courses, but it is the duty of such a railroad company to provide sufficient openings or culverts for the escape of the water of all streams crossing its roadbed, so as not to flood the lands of upper riparian owners, whether at ordinary stage of water or during floods which could reasonably have been foreseen and guarded against; and, if it fails to provide such openings, it is liable to any person damaged thereby. In constructing its roadbed across a stream a railroad company should provide an outlet, not merely for the water falling within the banks of the stream, but also for all water which has been accustomed to flow into the stream from the surface of the adjacent country. Railway Co. v. Cook, 57 Ark. 387, 21 S. W. 1066; Railway Co. v. Lyman, 57 Ark. 512, 22 S. W. 170; St. L., I. M. & S. Ry. Co. v. Hoshall, 82 Ark. 387, 102 S. W. 207, and St. L. S. W. Ry. Co. v. Mackey, 95 Ark. 297, 129 S. W. 78.

Under these principles of law it may be said that the duty thus cast upon railroad companies is a continuing one, and devolves upon them just as much in the change of the construction of their roadbeds by filling up trestles and making them into embankments as it did in the beginning when the roadbeds were originally constructed. In the application of these principles of law to the facts of the case at bar it cannot be said that the evidence is not legally sufficient to...