Railway Co. v. Cook

• Decision Date: 11 March 1893
• Citation: 21 S.W. 1066,57 Ark. 387
• Parties: RAILWAY COMPANY v. COOK
• Court: Arkansas Supreme Court

21 S.W. 1066

57 Ark. 387

RAILWAY COMPANY v. COOK

Supreme Court of Arkansas

March 11, 1893

Appeal from Craighead Circuit Court, Jonesboro District, JAMES E RIDDICK, Judge.

Cook brought an action against the Kansas City, Fort Scott & Memphis Railroad Company to recover for injuries to his land by overflows caused by the lack of sufficient openings in defendant's road-bed at the point where its line of railroad passes over and across Cache river and the adjacent sloughs entering into said river. Plaintiff recovered a judgment of $ 150, and defendant has appealed.

The court, upon its own motion, gave the following among other instructions:

"2. The jury are instructed that it is a duty of a railroad company to provide proper and sufficient openings or culverts for the escape of the water of all streams crossing its road-bed so as not to obstruct and cause the water to overflow the lands of upper proprietors, whether at times of ordinary stage of water in such streams or from floods which by the exercise of proper care and skill, could have been foreseen and guarded against, and if they fail to provide such openings they are liable to any person damaged by such failure."

"3. If the jury find, from the evidence, that the defendant railway company filled an opening in its road-bed across Cypress slough or Cache river with a solid embankment, not leaving opening enough for the escape of the waters which would naturally seek an outlet in the channel of said streams in times of high water, and that the plaintiff's land was overflowed and damaged by the backing or damming up the waters of said streams, resulting from a want of sufficient openings for the escape of the waters of said slough and river, and that such result of the filling of said openings could have been foreseen and guarded against by the use of ordinary care on the part of defendant, they will find for the plaintiff."

"4. The defendant company was only required to use ordinary care in constructing their roadbed and openings therein, and if they exercised such care and left openings sufficient to carry off the waters which would reasonably be supposed to flow along said slough and river, but that the overflow which injured plaintiff's land, if injury be found, was of such extraordinary character that ordinary prudence would not have provided against it in the construction of the openings, then defendant is not liable, and they should find for defendant. In other words, if the flood, though extraordinary, might, by the use of ordinary care, have been anticipated and guarded against, then the company would be liable for damages occasioned by failure to provide sufficient openings, but it would not be required to provide openings sufficient to carry off the waters of a flood so extraordinary that its occurrence would not reasonably have been foreseen and provided against."

"5. The court instructs the jury that under the statute of Arkansas this defendant was authorized to construct its road across Cache river, Cypress slough and all other streams and watercourses on the line of its railroad, and if, in the proper construction of bridges over such streams, damage was unavoidably done to the land of plaintiff, or if damage incidentally resulted from the proper construction thereof to plaintiff's land, still the defendant is not liable."

"7. If the jury find for plaintiff, they will assess his damages by ascertaining first, what the value of plaintiff's land would have been had such railroad embankment been constructed with sufficient openings for the passage of the water, and then by ascertaining what the value of said land was at the time such embankment complained of was built, supposing the consequences of filling in such embankment to have been known, and they will deduct the latter from the first, and assess plaintiff's damages at the remainder, or difference left."

The defendant asked, and the court refused to give, the following instructions:

1. The court instructs the jury that the defendant is not liable for failing to construct bridges or leave openings so as to pass extraordinary floods or freshets. And, although you may find that the lands of plaintiff were overflowed by back water during extraordinary floods or freshets by the reason of the defendant failing to construct bridges and leave openings in its embankments sufficient to pass the waters of such floods or freshets, still, the defendant would not be liable by reason thereof, and your verdict should be for defendant."

"2. The court instructs the jury that all the waters not carried within the banks of Cache river, Cypress slough, Bohanan slough and Gum slough are in law surface waters, and if it was necessary for the defendant to fill in the opening with solid embankments for the better safety of its road-bed and the traveling public, and in so doing exercised reasonable care and skill, it would not be liable for any damages sustained by the plaintiff resulting from the filling in of such opening."

"3. The court instructs the jury that if you find from the evidence that the trestle work was put in the road-bed by defendant as a temporary structure, and it was necessary for the safety of the road-bed, and the safety of the traveling public, to change the structure from the trestle work to a solid embankment, and such change was made by the defendant in a reasonably skilful manner, and injury unavoidably resulted from such change to the lands of the plaintiff still the defendant would not be liable."

"4. The court instructs the jury that the defendant was not required to provide sufficient openings at the crossings of the railroad of Cache river and Cypress slough or other streams or water courses, to drain the country between these streams or to carry off the accumulations of mere surface waters, but is only required to build its bridges across said water courses of sufficient height and length to carry off the waters of said streams carried within their banks in times of ordinary high water."

Judgment reversed and cause remanded.

Wallace Pratt and Olden & Orr for appellant.

1. The complaint fails to state a cause of action. It fails to state that defendant negligently or unskilfully constructed its road, and that by reason thereof insufficient openings were left, which caused the damage. 12 S.W. 815. Negligence should be alleged specifically. 6 Mo.App. 578; 37 Ark. 32; 31 id. 278; 95 Mo. 368; 93 id. 445.

2. To entitle plaintiff to recover, two things must occur, damage to his land, and that damage must be caused by the negligent and unskilful acts of defendant in the construction of insufficient openings for the passage of the waters, in times of ordinary high water, which could reasonably have been anticipated and provided for. The evidence fails to show this. The rental value of the land is not shown, and the only damage shown was a failure to raise a crop on eight acres. If a recovery could be had at all, it could only be for nominal damages. 55 Ark. 294; 3 Suth. Dam. p 415. Public policy requires railroads to be constructed so that they may be operated with safety to the public, and if in their proper construction private property remotely located is indirectly injured, the railroad is not liable. 35 Ark. 622. They are not liable for injuries which are the natural and unavoidable effect of their road. 36 Mo. 202. See also, 83 Mo. 271; 85 id. 87; 39 Ark. 463. The non-expert testimony for plaintiff should have been excluded. 20 S.W. 515. Railroads are not liable for injuries caused by extraordinary floods which could not reasonably have been anticipated. Wood, Ry. Law, vol. 2, p. 875; 56 Me. 443; 56 Pa.St. 445. In the light of the above authorities the court's charge was erroneous. It was the duty of the railroad only to provide openings sufficient to pass ordinary freshets. The court also erred in its 7th instruction as to the measure of damages. 52 Ark. 240; 20 S.W. 517. Sloughs or swales are not watercourses. Accumulations of surface water in times of high water form no part of watercourses or running streams. 27 Wisc. 661; 18 Mo.App. 254.

B. H. Crowley and T. P. McGovern for appellee.

Plaintiff's claim accrued at the time of the completion of these openings, and has no relation to the original construction of the road. 39 Ark. 463. The instructions fully declare the law as to the liability of the railroad for failure to provide openings sufficient to carry off the waters of even an extraordinary flood, if ordinary prudence and foresight could have anticipated and guarded against it. 2 Wood, Ry. Law, p. 875; 30 Am. & E. R. Cases, 200. The measure of damages is laid down in 30 Ark. 622. The complaint sufficiently charges negligence. 20 A. & E. Enc. Law, p. 389. It is the duty of a railroad to provide sufficient openings for the escape of water of all streams crossing its road-bed, so as not to overflow lands of upper proprietors, whether at ordinary stage of water, or from floods which by the exercise of ordinary skill and care, could have been foreseen and guarded against. 39 Ark. 463; 45 Id. 253; 2 Wood, Ry. Law, pp. 875, 876, 879. The evidence of plaintiff was admissible. 17 Conn. 249; 21 Tex. 256; 26 Id. 147.

OPINION

HEMINGWAY, J.

This is an action for injuries to land alleged to have resulted from the negligent manner in which the defendant changed the structure of its road bed; it is alleged that the defendant originally constructed its road with sufficient openings, but that in the fall of 1889 it made a change, substituting a solid embankment for a trestle, and thereby encroached upon the channel of Cache river and adjacent sloughs so as to obstruct the flow of water through them, and cause it to flow back on plaintiff's land; that during the following winter his...