Polk v. I. C. R. R. Co.

• Decision Date: 25 May 1917
• Citation: 175 Ky. 762
• Parties: Polk v. Illinois Central Railroad Company.
• Court: Kentucky Court of Appeals

175 Ky. 762

Polk v. Illinois Central Railroad Company.

Court of Appeals of Kentucky.

Decided May 25, 1917.

Appeal from McCracken Circuit Court.

MILLER & MILLER for appellant.

WHEELER & HUGHES, R. O. FLETCHER and TRABUE DOOLAN & COX for appellee.

OPINION OF THE COURT BY JUDGE MILLER — Affirming.

The lands of the appellant, Mrs. Polk, lie on each side of the west fork of Island creek, in McCracken county. About 200 yards below her land the Illinois Central Railroad crosses Island creek, on a trestle. A narrow strip of land belonging to Jones lies between the trestle and the land of Mrs. Polk. The land of G. T. Moss is also situated on Island creek, above Mrs. Polk's land.

Mrs. Polk and Moss brought separate actions against the Illinois Central Railroad Company for the destruction of their crops in 1914, by the negligence of the railroad company in permitting the drift and debris in the creek to accumulate on its right of way and against the railroad trestle, to such an extent as to dam up the water and thereby flood their lands.

The two cases were heard before the same jury, and upon the same proof; and the jury having found a verdict for the company in each case, Mrs. Polk prosecutes this appeal. Moss has not appealed.

There is no contention that the bridge or trestle was defectively constructed; on the contrary, the claim of the plaintiff is rested entirely upon the alleged negligence of the company in permitting the drift and debris in the creek to accumulate on its right of way and thereby obstruct the culverts under the trestle. The request for a reversal is based upon the alleged error of the trial court in instructing the jury.

The rule of law applicable to cases of this character is stated in 40 Cyc. 575, as follows:

"If reasonable care and foresight have been exercised in constructing a railroad, the railroad company cannot be held liable because its structures have contributed to causing the overflowing of riparian lands at a time of extraordinary and unprecedented floods; but if there was negligence in the construction of the bridge, embankment, or other work, which contributed to the injury, it is no defense that the flood was unexampled or overwhelming."

By the first instruction the court advised the jury that if the railroad company's negligence permitted the culvert or opening under its trestle to become so filled with dirt, sand, brush, or other obstructions, as to render it inadequate to carry off the water that accumulated upon plaintiff's land from the usual and ordinary floods or rainfalls in that vicinity, and that the water from such usual and ordinary rainfalls was thereby caused to overflow the plaintiff's land in unusual volume or quantity, thereby injuring or destroying the growing crops of the plaintiff, the law was for the plaintiff and the jury should so find.

This instruction is criticised because it required the water from the usual and ordinary rainfalls to overflow the plaintiff's land in "unusual volume or quantity" before she could recover. It is insisted that the plaintiff was entitled to recover in case her lands were overflowed by the usual and ordinary floods or rainfalls, if their flow was interrupted by the defendant's negligently permitting its culvert to be obstructed, and that the court improperly predicated plaintiff's right to recover upon the accumulation of an unusual volume or quantity of water.

The instruction would have been better if the qualification involved in the expression "unusual volume or quantity" had been omitted; but, in view of the fact that the expression was qualified so as to permit a recovery in case the plaintiff's crops were damaged by the overflow, it is apparent that the jury could not have been misled in applying the instruction as a whole. The plaintiff's right to recover depending upon the company's negligently permitting its culvert to become obstructed, to the injury of plaintiff, it is apparent that any injurious accumulation of water from the ordinary and usual rains would, by reason of the obstruction, be of unusual volume or quantity.

There is some evidence to the effect that Jones had permitted logs and drift to accumulate on his intervening land, and that this accumulation of obstructions contributed to the overflow of Mrs. Polk's land, and the consequent destruction of her crops. Under this proof the court, by its second instruction, advised the jury that if it should believe from the evidence that the overflow to plaintiff's land was caused by extraordinary rains or floods that could not have been anticipated by persons of ordinary experience and prudence, they should find for the defendant; and, further, that if any part of the overflow and injury to plaintiff's crops resulted from any other cause than the inadequacy of the culvert under defendant's trestle, and by reason of the obstructions mentioned in the evidence, the plaintiff could not recover for any injury to her crops, "so caused."

The criticism of this instruction is that the expression "so caused" might equally have referred to the obstructions caused or permitted by the railroad company, or to the obstructions caused by Jones; and, for that reason, they might have believed they would not be justified in finding a...