Morris v. Receivers of Richmond & D. R. Co.

• Decision Date: 24 November 1894
• Parties: MORRIS v. RECEIVERS OF RICHMOND & D.R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

65 F. 584

MORRIS v. RECEIVERS OF RICHMOND & D.R. CO.

United States Circuit Court, W.D. Virginia.

November 24, 1894

P. W McKinney and W. H. Mann, for plaintiff.

B. B Munford and A. J. Montague, for defendants.

HUGHES District Judge.

The plaintiff here seeks to recover from the Richmond & Danville Railroad Company compensation for damages caused by the water of a very high freshet which occurred in Drake's Branch in Charlotte county, Va., in September, 1893. The damage was to hogsheads of tobacco belonging to the plaintiff, which were stored in a warehouse on the banks of the stream, into which the water of the freshet rose some two feet above the floor of the building. The amount of the damage claimed is $6,000. Several hundred yards below the warehouse the railroad crosses Drake's Frank on an embankment, under which are two culverts constructed for the vent of the water of the stream. The complaint of the plaintiff, on which he founds his claim for damages, is that the passage of water through these culverts was obstructed by more or less rubbish and debris lodged in them at the time of the freshet. There is no proof that there had been any previous complaint of the insufficiency of these culverts at any time since they were constructed, 40 years ago. It is proved that the freshet which caused the damage to the plaintiff's tobacco was produced by a downpour of rain, unprecedented in volume within the memory of middle-aged witnesses who were examined on the subject. Some 30 or more witnesses have been examined on the naked question whether there were obstructions in the culverts.

The vis major in the case was the freshet; and, inasmuch as this was of extraordinary magnitude and volume, it is to be regarded as one of those dispensations of Providence which are called 'acts of God,' such as cannot be provided against by the ordinary care and foresight of man. Our law holds that damages cannot be recovered against man when it is caused by the act of God. The law also holds that, where damages occur from an act of God and from the negligence of man occurring coincidently, there can be no recovery, unless it be affirmatively proved that, if there had been no act of God the damage would still have occurred. In the case at bar it is a non sequitur to assume that, because there was a railroad embankment below the place of damage by which the flow of the water of the freshet was obstructed, therefore the damage to plaintiff's tobacco was caused by the obstruction. It is not enough to prove the obstruction and stop there. Something more...