Norfolk & W. Ry. Co. v. McCoy

• Decision Date: 21 December 1934
• Citation: 77 S.W.2d 392,257 Ky. 32
• Parties: NORFOLK & W. RY. CO. v. McCOY. SAME v. FITCH.
• Court: Kentucky Court of Appeals

77 S.W.2d 392

257 Ky. 32

NORFOLK & W. RY. CO. v. McCOY.

SAME v. FITCH.

Court of Appeals of Kentucky

December 21, 1934

Appeal from Circuit Court, Martin County.

Suits by Hi McCoy and Ben Fitch, respectively, against the Norfolk & Western Railway Company. From judgments for plaintiffs respectively, defendant appeals, and the appeals were consolidated.

Reversed for proceeding consistent with opinion.

W. R McCoy, of Inez, F. M. Rivinus, of Roanoke, Va., and Homer E Holt, Holt & Holt, and W. K. Cowden, all of Huntington, W Va., for appellant.

Jasper H. Preece, of Inez, and W. H. D. Preece, of Williamson, W. Va., for appellees.

RICHARDSON Justice.

These actions are again presented to this court. Norfolk & W. Ry. Co. v. McCoy, 250 Ky. 190, 61 S.W.2d 1080, 1082; Norfolk & W. Ry. Co. v. Fitch, 250 Ky. 180, 61 S.W.2d 1082.

In their brief, McCoy and Fitch make these statements: "A concise and complete statement of these cases was made in briefs for appellees on first appeal and the opinions of the court in reversing the said cases show that the court had a comprehensive understanding of the issues involved and the respective contentions of the parties hereto, together with their rights and duties with respect to each other. *** We submit that on the former trial the evidence was not clear as to the character of appellees' land, the topography and formation thereof, the amount of bottom and other land, the comparative value thereof, and the value of improvements, etc., while on this trial all of these details are made plain and understandable. *** In other words, an examination of the evidence on these questions will show that a real and substantial basis was laid, not only for the verdict of the jury, but for the enlightenment of this court in passing upon said verdicts."

True it is, witnesses testified on the last trial who were not introduced at the first, but their testimony is merely accumulative, and in no sense additional or new evidence. Nor can the fact the jury viewed the land on the last trial be regarded as such evidence.

The facts established by the testimony of McCoy and Fitch and their witnesses and that of the railway company, it is conceded, are aptly and correctly stated in our former opinions. It is entirely unnecessary to repeat them in this opinion.

In our opinion in the Fitch Case we said: "The farm contains about 56 acres, of which about 6 acres is level; the rest being hill land. *** The stream flows straight for 1,000 feet below the obstruction [the fill] before reaching the upper line of Fitch's land. It continues along the land practically straight and then has a broad curve. It is very difficult to see how the railroad fill could in any way have affected this property. Whatever deflection there may be in the current would seem to have been a natural one. *** Nevertheless, there is evidence of the washing and eroding of plaintiff's land, but some of it seems rather romantic, certainly the conclusions as to the cause are extravagant. In view of the necessity of reversing the judgment upon another ground, we reserve the question whether there was evidence, as distinguished from testimony, sufficient to take the case to the jury."

Carefully viewing and diligently examining the evidence, we are thoroughly convinced the evidence entirely fails to establish with any degree of certainty greater than conjecture, surmise, and speculation that the railroad fill diverted Tug river, and thereby caused any damages to the land of Fitch, 1,000 feet below the fill.

True it is, Fitch and his witnesses testify the water from the river was diverted by the railroad fill erected in the river bed and his land was thereby damaged; but their testimony respecting this issue is at most merely their opinions without any facts upon which to base them. Considering the distance from the terminus of the fill to Fitch's land in connection with the fact that the water after it...