Reichert v. N. Pac. Ry. Co.

• Decision Date: 01 March 1918
• Citation: 167 N.W. 127,39 N.D. 114
• Parties: REICHERT et al. v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

39 N.D. 114

167 N.W. 127

REICHERT et al.

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

September 25, 1917.

On Rehearing, March 1, 1918.

Syllabus by the Court.

Under the facts of the case, it was not reversible error to fail to instruct the jury as to what constituted a natural water course or drainway; no specific instruction being asked.

Where a railway company constructs an embankment across a natural drainway, it is its duty to prepare a culvert or other outlet sufficient for any flood which may reasonably be anticipated, and where the culvert or outlet is in fact insufficient for such purposes, the mere fact that competent engineers are employed, or that the embankment is constructed in the manner usually adopted by railway companies, will not save such company from liability.

The opinions of experts cannot prevail over actual facts.

A plaintiff is not bound to exclude the possibility that the accident complained of might have happened in some other way than that contended for by him. He is merely required to satisfy the jury by a fair preponderance of the evidence of the truth of his contention.

Where property is flooded by the inadequacy of a ditch and culvert through a railway embankment which is constructed across a natural drainway, the burden of proof to show that the rainfall was so unusual and unprecedented that it need not have been anticipated is upon the defendant, and the fact is one primarily for the jury and not the court to pass upon.

The mere fact that a flood is unusual does not absolve a railway company from liability if its ditches and culverts constructed through an embankment across a natural drainway are inadequate to carry off the water and to save the adjoining property from loss. The question is whether it was beyond ordinary anticipation.

The same rule of liability applies in cases of the obstruction of natural water courses and of natural drainways.

It is not necessary to the proof of a natural drainway that there should be proof of water flowing at all times or of a wearing away of the grass at the bottom. In treeless areas, such as those in North Dakota, the courts must take cognizance of the natural topography of the country and of its climatic condition, and that large volumes of water rush down such drainways in a few days or hours, which in wooded areas would form continuous streams and take months to pass away.

Where in an action in tort which, under the provisions of section 7143 of the Compiled Laws of 1913, interest is allowable in the discretion of the jury, and in which the complaint asks for interest and the jury returns a verdict in excess of the ad damnum, but not in excess of the ad damnum and interest thereon, if interest had been allowed, the court will presume, in the absence of any objection at the time of the rendition of the verdict or request to have the same made more definite, that the amount so returned included interest, and the verdict will not, for the reasons given, be set aside.

Argument by counsel on a special verdict held, under the facts of the case, not to constitute prejudicial or reversible error.

The refusal of certain offered instructions held not to have been prejudicial.

Additional Syllabus by Editorial Staff.

In an action for damages to the basement of a hotel by obstructing and throwing back of storm waters, the exclusion of testimony as to whether other culverts had been sufficient, going to collateral issues, was not error.

In such action, evidence as to whether the railroad property, before the filling in, was higher or lower than the street was admissible.

On Rehearing.

Surface waters having an accustomed flow in a drainage channel, or waterway having well-defined banks, may not be stopped by an embankment across the channel so as to divert the waters to the injury of adjoining proprietors.

Where a railroad crosses a ravine, gully, or natural depression, forming the natural and accustomed channel for the escape of surface waters, it is incumbent upon the railroad to provide for the flowage.

The term “act of God” in its legal sense applies only to events in nature so extraordinary that the history of the climatic variations and other conditions in the particular locality affords no reasonable warning of them.

Appeal from District Court, Stark County; W.C. Crawford, Judge.

Action by Henry L. Reichert and William G. Ray, copartners doing business under the firm name and style of Reichert & Ray, against the Northern Pacific Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Christianson and Robinson, JJ., dissenting.Watson, Young & Conmy, of Fargo, for appellant. Murtha & Sturgeon and Thomas Pugh, all of Dickinson, for respondents.

BRUCE, C. J.

This is an action to recover damages for an injury to the basement of a hotel and a stock of cigars and other articles contained therein by the obstruction and throwing back of storm waters. The complaint alleges generally:

“That upon said right of way on said date and for a long time prior thereto the defendant maintained a high grade or embankment of earth rising several feet above the level of the surrounding surface of the land; * * * that said grade or embankment crossed a natural water course; * * * that said water course had a well-defined bed and banks, and a stream of water flowing through said water course; that said water course and the bed thereof is the natural drainage for surface and storm waters for a large part of the city of Dickinson and surrounding territory; * * * that the defendant company in constructing said embankment * * * carelessly and negligently entirely filled up and destroyed said water course and channel of drainage, and in the place and stead thereof put through its embankment, part way, a small crooked open ditch and the other part of the way a small iron culvert connecting with said ditch, which said ditch and culvert were entirely insufficient in size and fall to carry off the waters of said water course or storm water of said drainage area or basin in times of rain, and were so carelessly and negligently constructed and maintained that they entirely failed to carry off said waters; that because of the negligent construction and maintenance of said embankment, the negligent construction and maintenance of said ditch and culvert, and the lack of size, fall, and capacity of said ditch and culvert, on July 28, 1914, storm waters dammed up against said embankment and flowed over and upon the hereinbefore described premises of the plaintiffs, and into said basements,” etc.

The answer is a general denial, to which is added the further defense:

“That the damage and injury suffered by the plaintiffs herein were occasioned and caused by an unusual and unprecedented storm and flood.”

[1] The injury complained of was the result of the same storm which was considered by this court in the case of Soules v. Northern Pacific R. R. Co., 34 N. D. 7, 157 N. W. 823, L. R. A. 1917A, 501, the hotel of the plaintiff being situated on Villard street and just one block west of the property damaged and under consideration in the prior action. With the exception of that part which pertains to the property injured and the value thereof, the evidence is very similar. Though, therefore, we will seek to point out and to consider the points in which a difference occurs, we will not detail all of the evidence, but will satisfy ourselves by referring generally to the prior decision.

In the case of Soules v. N. P. R. R. Co., 34 N. D. 7, 157 N. W. 823, L. R. A. 1917A, 501, we found that the jury was justified in holding and the special verdict in the case at bar also finds, that the swale or ravine down which the waters ran was a natural drainway. In the present case, however, it is contended that the court erred in not instructing the jury as to what, under the law, constitutes such a drainway or water course. There is no merit in this contention. It would seem generally that a jury of intelligent men is fully competent without instructions upon the subject to decide what a natural water course or a natural drainway is. In any event the error, if error at all, was one of nondirection and not misdirection, and the defendant, if he desired a specific instruction upon the subject, should have asked for one. Buchanan v. Occident Elevator Co., 33 N. D. 346, 157 N. W. 122;Halverson v. Lasell, 33 N. D. 613, 157 N. W. 682;McGregor v. Great Northern R. R. Co., 31 N. D. 471, 154 N. W. 261, Ann. Cas. 1917E, 141.

[2][3] It is next contended by counsel for the defendant that the plaintiff put no expert engineers on the stand, and that the engineers of the defendant testified that the culvert was constructed according to approved methods, and by competent engineers, and in such a manner as is usually adopted by railway companies. He argues from this that no negligence is shown on the part of the defendant railway company, and that therefore no recovery can be had. We are satisfied, however, that, provided the ravine or swale is a natural drainway, building an embankment or culvert in the most approved manner does not excuse the defendant in a case such as that which is before us, provided that the provision for the flowage is actually insufficient, and that the flowage of which the defendant had seasonable warning was not provided for. Fremont Ry. Co. v. Harlin, 50 Neb. 698, 70 N. W. 263, 36 L. R. A. 417, 61 Am. St. Rep. 578;Houghtaling v. Railway Co., 117 Iowa, 540, 91 N. W. 811;Skinner v. G. N. Ry., 129 Minn. 113, 151 N. W. 968;Lion v. Balt. Ry., 90 Md. 266, 44 Atl. 1045, 47 L. R. A. 127;Hitchins Bros. v. Frostburg, 68 Md. 113, 11 Atl. 826, 6 Am. St. Rep. 422.

It is true that in the cases of Carroll v. Rye Twp., 13 N. D. 458, 101 N. W. 894, and Hannaher v. St. Paul, M. & M. R. Co., 5 Dak. 23, 24, 37 N. W. 717, we seem to have held that actual negligence in construction was necessary to be proved. Those cases, however, relate to surface waters merely,...