Okla. Ry. Co. v. Boyd

• Decision Date: 19 February 1929
• Docket Number: Case Number: 18903
• Citation: 282 P. 157,140 Okla. 45,1929 OK 82
• Parties: OKLAHOMA RAILWAY CO. et al. v. BOYD.
• Court: Oklahoma Supreme Court

1929 OK 82

282 P. 157

140 Okla. 45

OKLAHOMA RAILWAY CO. et al. v. BOYD.

Case Number: 18903

Supreme Court of Oklahoma

Decided: February 19, 1929

Syllabus

¶0 1. Appearance -- Municipal Corporations--Venue of Actions Against -- Action Brought in Another County--Effect of General Appearance by Municipal Counselor.

Where an action is brought against a city and another in the county other than that in which the city is situated, and service of summons is had upon the mayor of the city in the county of its situs, and the municipal counselor of the city, whose duty under the city charter is to represent the city in all courts, enters a general appearance for the city in the cause by filing a general motion and general demurrer, such appearance and the filing of such pleadings, when done in good faith, constitute a waiver of such special privilege as the city might have had to be sued in the county of its situs.

2. Master and Servant--Obligation of Performing Nondelegable Duty not Avoided by Performance Through Contractor.

Where one owes a nondelegable duty to third persons, he cannot escape the obligation of performing such duty by engaging for its performance through or by a contractor, and in such cases the rule that an employer is not liable for the negligence of an independent contractor has no application.

3. Torts--Waters and Water Courses--Alterations in Railroad Embankment Causing Flood Damages to Adjoining Landowner -- Railroad and City Altering Embankment as Joint Enterprise Held Joint Tort-Feasors.

Where a railway company owned a right of way across a running stream of water and constructed along said right of way an embankment for bridge purposes with sufficient openings therein for the passage of water, but later contracts with a city whereby the city might close the openings in said embankment, divert the channel of the water in another direction and create only one opening of much less carrying capacity in order that the city may use said embankment in connection with its waterworks system, and contracts, further, that the city shall maintain the embankment, though still used by the railway company for track purposes, and such changes are so made partly by the city, and partly by the railway company, but at the expense of the city, and by reason of negligent construction, obstruct the flow of the water resulting in flood damages to the adjoining land owners, the railway company and city will be regarded as joint tort-feasors in the construction of the dam.

4. Same--Recovery of Damages by Landowner Against Railroad and City Sustained.

Record examined, and held, that the evidence is sufficient to support the verdict of the jury.

5. Negligence--Liability Where Negligence Commingled with Act of God Produces Injury.

A defendant cannot be held liable for damage resulting solely from an act of God; but if his negligence is a present contributing cause, which, commingled with the act of God, produces the injury complained of then he is liable notwithstanding the act of God.

6. Torts--Instruction Where Evidence Shows Liability as Joint Tort-Feasors.

Where, under the evidence, two defendants are liable as joint tort-feasors, or not at all, it is not error for the trial court to refuse defendant's requested instruction to the effect that the jury may find against the defendants jointly or against either the one or the other as the evidence may justify.

7. Pleading--Allegations in Petition of Two Separate Acts of Negligence as Proximate Causes of Injury not Effective as Admission that Either Act is not Proximate Cause.

Where a petition alleges two separate acts of negligence, and that each act is a proximate cause of the injury complained of, the allegation that one of such acts of negligence is a proximate cause of the injury does not amount to an admission that the other act of negligence alleged is not a proximate cause of the injury, and especially where, under the facts in the case, each act might have contributed to the injury complained of.

8. Landlord and Tenant--Right of Tenant to Sue for Damage to Whole Crop Where Cash Rental Was to be Paid Equal to One-Third of Proceeds of Crops.

Where plaintiff grew certain crops on rented land under an agreement with his landlord to the effect that plaintiff would gather and market all of the crops, and pay a cash rental equal to one-third of the proceeds realized from the sale of the crops, plaintiff is entitled to maintain an action for damage to the whole of the crops sustained while the crops were still in his possession, and before they were marketed.

Commissioners' Opinion, Division No. 2.

Error from District Court, Canadian County; Wyley Jones, Judge.

Action by W. H. Boyd against Oklahoma Railway Company and City of Oklahoma City, for damages on account of flood waters. Judgment for plaintiff, and defendants appeal. Affirmed.

Shartel & Gilliland and John H. Vossbrink, for plaintiff in error Oklahoma Railway Company.

M. W. McKenzie, Municipal Counselor, for plaintiff in error Oklahoma City.

Ledbetter, Stuart, Bell & Ledbetter and A. G. Morrison & Sons, for defendant in error.

JEFFREY, C.

¶1 This action was begun by W. H. Boyd against the city of Oklahoma City and the Oklahoma Railway Company to recover damages growing out of floods on the North Canadian river in June and October, 1923. W. H. Boyd is hereinafter referred to as plaintiff, the city of Oklahoma City as defendant, and the Oklahoma Railway Company as codefendant. Plaintiff's petition alleged, in substance, that prior to 1923, codefendant owned and operated an interurban railway line between Oklahoma City and El Reno; that it owned a right of way upon which its tracks and property were located; and that where said right of way and tracks crossed the North Canadian river between Oklahoma City and El Reno there was a dump or embankment constructed according to the lay of the land, with three waterways or openings in the same sufficient for the passage of water through said embankment, and that said embankment was so constructed that in time of flood the waters could run over said embankment and railway tracks without being diverted from the first bottom along said stream, and without causing it to flow over adjoining lands situated on the second bottom along said river; that prior to 1923, defendant, being desirous of enlarging and improving its water supply for the inhabitants of said city, undertook to construct a large reservoir on said river by constructing a dam across it about two miles below codefendant's right of way where it crosses said stream. It was further alleged that said defendant, as a part of its water program, desired to construct above codefendant's right of way and on said stream a settling basin; and thereupon, by permission of codefendant and with its aid and assistance, defendant closed up the waterways or openings in codefendant's embankment where the same crossed the river, and built said embankment eight to twelve feet higher, and diverted the water of said river directly east, and constructed a waterway through said embankment only about one-third in carrying capacity of the openings which formerly existed through said embankment, and caused the water of said stream to flow down a by-pass or a new channel. Plaintiff alleged that he was the owner of certain lands situated on the west side of the river in Canadian county, and on the south and the north sides of codefendant's railway tracks on the second bottom of said river; and had growing thereon, and upon other lands rented by plaintiff, certain farm and garden crops; that in June, 1923, because of heavy rainfall, flood water came down said river in great volume, and due to defendant and codefendant having closed the waterways through codefendant's embankment across said stream and bottom, there were not sufficient waterways to take care of the flood waters, and the embankment was raised to such height that the water could not go over, and by reason thereof said flood waters backed up on to plaintiff's premises on the north of the railway tracks, into his residence and over his farm crops. All of which destroyed certain portions of his land and destroyed and damaged certain crops standing; that in October, 1923, another flood of greater magnitude than that of June came down upon said embankment, and the waters thereof being unable to pass freely, backed on to plaintiff's farm lands, into his residence, ran over the railway right of way at the west end of the embankment, washed and destroyed certain parts of his land, destroyed and damaged various crops, live stock and household goods and furnishings to his damage in the total sum of $ 10,784.

¶2 To plaintiff's petition, defendant filed an answer, in which it denied the allegations of damage and pleaded specifically that, if plaintiff sustained the damage complained of by reason of said flood, such damage was the direct and proximate result of unprecedented storms and floods and other acts of God, which could not, with reasonable diligence, have been anticipated, and that said damage was not the result of the construction of said waterworks, but was due to acts of God. Codefendant answered by denying that plaintiff sustained any damage by reason of its negligence, but that if he sustained such damage, it was due to the carelessness and oversight of defendant, or to unprecedented floods, which were the acts of God.

¶3 Plaintiff filed replies to each of the answers denying the material allegations of new matter set forth therein. On the issues thus formed, the cause was tried to a jury and a verdict rendered in favor of plaintiff and against codefendant and defendant, jointly, in the sum of $ 5,333. Judgment was duly rendered thereon, and from this judgment and order overruling motion for new trial, defendant and codefendant have each appealed. Plaintiff's petition contains three causes of action, but, for the purpose of passing upon the questions raised, they may be...