Payne v. Smith

• Decision Date: 06 February 1923
• Citation: 198 Ky. 564,249 S.W. 995
• Parties: PAYNE, AGENT, ETC., v. SMITH. PAYNE, AGENT, ETC., v. LANHAM.
• Court: Kentucky Court of Appeals

249 S.W. 995

198 Ky. 564

PAYNE, AGENT, ETC., v. SMITH.

PAYNE, AGENT, ETC., v. LANHAM.

Court of Appeals of Kentucky.

February 6, 1923

Rehearing Denied April 24, 1923.

Appeal from Circuit Court, Ohio County.

Separate actions by J. W. Smith and by I. N. Lanham against John Barton Payne, as Agent. Judgments for plaintiff in each case and defendant appeals. Judgments reversed, and each cause remanded for new trial.

B. D Warfield and Ernest Woodward, both of Louisville, and A. D Kirk, of Hartford, for appellant.

W. H Barnes and C. E. Smith, both of Hartford, for appellees.

SAMPSON C.J.

These two causes, and a third one not appealed, were tried in the Ohio circuit court; Lanham being awarded damages in the sum of $300, Smith damages in the sum of $250, and Brown, etc., the sum of $100, against the railroad company. The railroad company prays an appeal from the judgments in favor of Lanham and Smith. Both Smith and Lanham own tracts of land in a narrow valley in Ohio county, across which the Louisville & Nashville Railroad Company maintains its tracts upon an embankment or fill. These suits were brought separately against the railroad company for the recovery of damages for the loss to each of the plaintiffs of a crop of growing corn on their respective lands in the year 1918, occasioned, as it is alleged, through the negligence of the company in constructing its embankment and in failing to have apertures in its embankment large enough to allow the water to flow through unobstructed, and in failing to keep such apertures as it had free from obstruction by silt, thus casting water upon the fields in which the corn was growing and damaging and destroying it.

The railroad company traversed the material allegations of the petitions in each of the cases, and by a second paragraph pleaded that the embankments supporting its tract and the culverts and openings therein of which the plaintiffs complain were each and all permanent structures for the use of defendant, a common carrier of freight and passengers, erected more than five years before the alleged damage, and that said embankment, culverts, and openings were constructed pursuant to and in conformity with the judgment, experience, and skill of highly qualified civil engineers and persons selected for that purpose and in pursuance to and in conformity with the natural drainage, water courses, and surface condition of all the lands in the petitions mentioned; that the lands of the several plaintiffs were low, flat, and marshy; and that this low, flat, and marshy condition alone brought about the overflow of said lands and the destruction of the crops, if such there were. Further pleading, the company in the third paragraph averred that the overflow, if any there were on the lands of the several plaintiffs, was occasioned by excessive, unusual, and unprecedented rainfall such as could not have been reasonably foreseen or anticipated in the building and constructing of the embankment, openings, culverts, and structures of the said company, and was not due to any negligent construction of the embankment and culverts or to the existence of the same. Issue being joined, the cases were all submitted to one jury, with the result above stated.

The railroad company relies upon several grounds for a reversal of the judgments. Without reviewing the evidence it will be sufficient to state that it tends to show that in July, and again in August, 1919, after the crops of corn on appellee Lanham's land and on appellee Smith's land had been laid by, rain came which filled the creek and covered the grounds and was later backed up over the said corn crops to a depth of as much as three feet in some places, and that several acres of said growing corn were submerged and greatly damaged; that the lands were flat bottom lands which frequently overflowed; that the channel of the creek was not deep, and its banks were covered with bushes and trees, and that frequently débris lodged upon and against the trees and banks, obstructing the flow of the water, and that at the time of the said flooding of the growing crops there was one or more such obstructions in the creek above the railroad property; that there was another one about the fence between the railroad property and the lands of Lanham; that the opening through the railroad company's embankment was about 140 feet wide and that there was a ditch along the upper side of the embankment next to the lands of Lanham and Smith which carried the water towards and into the creek, and that the lands were so level and flat that the water drained off very slowly; that the lands from the earliest recollection of persons in that vicinity had been accustomed to overflow at intervals; and that the crops were not entirely destroyed but were merely damaged. It is further shown that the railroad embankment was a permanent one, made of dirt and rock about 20 feet across the top and about 8 feet high extending across the valley, except a trestle at the creek about 140 feet long; that the said embankment had been in the same condition for more than five years next before the alleged injury, and that the embankment had been in the same condition for more than five...