Railway Co. v. Yarborough

• Decision Date: 19 November 1892
• Citation: 20 S.W. 515,56 Ark. 612
• Parties: RAILWAY CO. v. YARBOROUGH
• Court: Arkansas Supreme Court

20 S.W. 515

56 Ark. 612

RAILWAY CO. v. YARBOROUGH

Supreme Court of Arkansas

November 19, 1892

APPEAL from Nevada Circuit Court, CHARLES E. MITCHEL, Judge.

This was an action by W. E. Yarborough against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for the destruction of the plaintiff's growing crops during an overflow of the Red River. The crops were destroyed on the 9th day of May, 1888, and the action was commenced on the 20th day of November, 1889. The complaint alleges that the defendant's road-bed was constructed across the Red River bottom in 1873; and that it was so carelessly constructed and maintained that, by reason of the insufficiency of its openings and trestles to permit the escape of the water during an overflow, the water was dammed up by it and caused to flow back upon the plaintiff's lands. The first paragraph of the answer admitted that the road-bed was constructed in 1873, but denied the charge of negligence and the other material allegations of the complaint. The second paragraph pleaded the statute of limitations, alleging that the plaintiffs right of action did not accrue within three years next before the commencement of the action.

On the trial much evidence was given to the jury as to the topography of the country in the vicinity of the plaintiff's farm and as to the manner in which the flowage passed on to the low lands adjacent to the river--also as to the character of some of the overflows occurring before and since the building of the road. The plaintiff, testifying in his own behalf, states the crops destroyed consisted of twenty-five acres of corn and sixty-five acres of cotton, and that, at the time of their destruction, the corn was about "knee high" and the cotton large enough to have received one working; that the average yield of his land in corn would have been, in 1888 forty-five bushels per acre, and that corn was worth, at the time the crop would have matured, fifty cents per bushel that the average yield of his land in cotton would have been for that year nearly a bale per acre; that on the sixty-five acres in cotton he Would have made sixty bales; and that the average price he obtained for cotton produced the same season was nine cents per pound. This testimony of the plaintiff was admitted over the objection of the defendant.

Royston Nash, a witness for the plaintiff, testified that he lived on Red River fifty years and had seen a few overflows there. There had been overflows in 1866, 1867, 1876 and 1880. Since the railroad had been built in 1873 witness noticed a difference. The overflow had been more frequent and was higher. This question was asked witness: "What is the occasion of that?" The question was objected to, but the objection was overruled. Witness answered: "I think it is the embankment or dump." To this answer the defendant objected, but the objection was overruled.

The court gave the jury the following instruction, which was objected to by the defendant:

"If the jury find for the plaintiff, the measure of damage will be the actual cash value of the crops destroyed, if the jury find from a preponderance of the evidence any such destruction, at the time of their destruction, with interest thereon at the rate of six per cent per annum from the date of said destruction."

The court refused to give the following instruction, requested by the defendant:

"10. The jury are instructed that if they find from the evidence that the defendant did erect its railway embankment south of Red River, upon its own grounds, and not upon ground belonging to the plaintiff, and that for want of sufficient openings, trestles, culverts and bridges in said embankment plaintiff was injured; and if they find that the construction of said railway was permanent in its character, and that its erection and continuance was necessarily an injury to the plaintiff and others, and that it was permanent in its effects, and that such permanent structures wrongfully obstructed the flow of water from above them; and if you find that said embankments were constructed in 1873, and their continuance ever since was necessarily an injury to the plaintiff, and by reason thereof plaintiff was injured, he cannot recover in this action, because said embankment was constructed more than three years before the commencement of this suit, and the plaintiff is barred by the statute of limitations."

The jury returned a verdict for the plaintiff and assessed his damages at $ 1,092.50. The defendant moved for a new trial on various grounds, embracing the ruling mentioned as to the admission of testimony and as to instructions to the jury. The motion was refused, and the railway company has appealed,

The other facts necessary to an understanding of the questions decided are stated in the opinion.

Judgment reversed and cause remanded.

Dodge & Johnsons for appellant.

1. The verdict was contrary to the evidence.

2. The opinions of witnesses who were not experts, and who had no personal knowledge upon which to base an opinion, were incompetent, and the court erred in allowing such evidence to go to the jury. 17 S.W. 364; Laws. Exp. Ev. pp. 203, 496.

3. The court erred in admitting testimony as to what should be the criteria of the measure of damages. The actual cash or market value of the crops at the time they were destroyed is the only true and correct measure of damages, and not what the yield and price would have been had the crop matured, 10 S.W. 576-85 Ill. 594; 47 Ga. 260; 41 Wis. 602; 11 S.W. 123, 337; 16 Ill. 530; ib. 534; 66 Barb. 88; 29 N.Y. 37; 33 Conn. 514; 17 Ill.App. 631; Thomps. Neg. sec. 1262.

Scott & Jones for appellee.

1. The evidence of Royston Nash was admissible as ex pert evidence. 14 S.W. 611.

2. The measure of damages was their actual cash value at the time of their destruction (10 S.W. 576), and to establish that value, its probable yield and the value of such yield may be taken into consideration. The difference between the value of the probable crop and the expense of making and marketing it will in most cases give the value. 11 S.W. 526.

3. The claim was not barred. 52 Arks. 240.

OPINION

MANSFIELD, J.

1. The damage which the plaintiff sued to recover was not original in the sense that it necessarily resulted from the erection of the railway embankment. But after that structure was completed the injury complained of was still entirely uncertain and contingent and such as might never happen. In this respect the case is similar to that of the St. Louis &c. R. Co. v. Biggs, 52 Ark. 240, 12 S.W. 331; and according to the rule there laid down the statute of limitations did not begin to run until the crops were destroyed. Troy v. Cheshire R. Co. 23 N.H. 83. The defendant's tenth instruction was not, therefore, applicable to the facts, and the court was right in refusing to give it.

2. The opinion of Royston Nash, admitted in evidence against the objection of the defendant, does not appear to us to fall within any of the exceptions to the general rule requiring witnesses to state facts and excluding their mere opinions. It is not claimed that Nash possessed any scientific knowledge on the subject as to which his opinion was given and he did not testify as an expert. As a non-expert, in order to make his opinion competent it was essential, not only that it should relate to a matter with which he was specially acquainted, but the subject matter must have been such as could not be otherwise sufficiently described. For if it was practicable for him to detail to the jury the facts within his knowledge as fully and perfectly as he had observed them, then the jury should have been left free to draw their own conclusion, and his opinion was inadmissible. Whart. Ev. sec. 512; I Greenleaf, Ev. sec. 440, note a, p. 535; Bennett v. Meehan, 83 Ind. 566; Commonwealth v. Sturtivant, 117 Mass. 122; Fort v. State, 52 Ark. 180, 11 S.W. 959; I Bishop, Cr. Pro. sec. 1178; Brown v. State, 55 Ark. 593, 18...