Reichert v. Northern Pacific Railway Co.

Decision Date25 September 1917
Citation167 N.W. 127,39 N.D. 114
CourtNorth Dakota Supreme Court

Rehearing denied March 1, 1918.

Action to recover damages for the flooding of a building.

Appeal from the District Court of Stark County, W. C. Crawford, J.

Judgment for plaintiffs. Defendant appeals.

Affirmed.

Watson Young, & Conmy, for appellant.

There is no negligence on the part of defendant proximately causing the loss claimed, shown by the testimony in this case. The plaintiff insists that, without reference to the question of negligence, the defendant is answerable in damages. Such is not the law. Broom, Legal Maxims, 8th ed. 365, and authorities cited; Carroll v. Rye Twp. 13 N.D. 458 101 N.W. 894.

In building its embankment and in putting in its culvert defendant was not required to anticipate extraordinary floods or superhuman agencies. Hannaher v. St. Paul, M. & M. R Co., 5 Dakota 24, 37 N.W. 717; Morrissey v. Chicago, B. & Q. R. Co., 38 Neb. 406, 56 N.W. 946; Chicago, R. I. & P. R. Co. v. Shaw, 63 Neb. 380, 56 L.R.A. 341, 88 N.W. 510; Gulf, C. & S. F. R. Co. v. Huffman, Tex. Civ. App. , 81 S.W. 537; Berninger v. Sunbury, H. & W. R. Co., 203 Pa. 516, 53 A. 361; Bellinger v. New York C. R. Co., 23 N.Y. 49; Cleveland, C. C. & St. L. R. Co. v. Wisehart, 161 Ind. 208, 67 N.E. 993; Harris v. Lincoln & N.W. R. Co., 91 Neb. 755, 137 N.W. 865; Wallace v. Columbia & G. R. Co., 34 S.C. 62, 12 S.E. 815; Chicago, B. & Q. R. Co. v. Schaffer, 26 Ill.App. 280.

Assuming that the proof offered by the plaintiffs here, tending to show inadequacy of the culvert, would be sufficient to sustain a finding of the jury to that effect, we contend that the other testimony in the case clearly disproves any such contention. Soules v. Northern P. R. Co. L.R.A.1917A, 501, 157 N.W. 823.

The undisputed testimony shows that the loss here might just as well have been occasioned by causes for which this defendant cannot be held responsible. The evidence shows that the defendant's culvert was blocked by a city crossing floating over it, and the flood and consequent loss were caused by this condition, and not by the inadequacy of the culvert. Meehan v. Great Northern R. Co., 13 N.D. 443, 101 N.W. 183; Garraghty v. Hartstein, 26 N.D. 148, 143 N.W. 390; Scherer v. Schlaberg, 18 N.D. 421, 24 L.R.A.(N.S.) 520, 122 N.W. 1000; Balding v. Andrews, 12 N.D. 267, 96 N.W. 305, 14 Am. Neg. Rep. 615; Andrews v. Kinsel, 114 Ga. 390, 88 Am. St. Rep. 25, 40 S.E. 300; Wm. Tackaberry Co. v. Simmons Warehouse Co., 170 Iowa 203, 152 N.W. 785; Berninger v. Sunbury, H. & W. R. Co., 203 Pa. 516, 53 A. 361.

It is mere speculation for the jury to say that an insufficient culvert was the proximate cause of the flood and loss. Atlantic Coast Line R. Co. v. Woolfolk, 189 Ala. 253, 66 So. 464; Sentman v. Baltimore & O. R. Co., 78 Md. 222, 27 A. 1074; Treichel v. Great Northern R. Co., 80 Minn. 96, 82 N.W. 1110; Garraghty v. Hartstein, 26 N.D. 148, 143 N.W. 390.

The excessive rains and storms which came were unusual and extraordinary, and could not have been anticipated within reason, and need not have been provided for. Soules v. Northern P. R. Co. supra; Wm. Tackaberry Co. v. Simmons Warehouse Co., 170 Iowa 203, 152 N.W. 779; Kansas City, M. & B. R. Co. v. Smith, 72 Miss. 677, 27 L.R.A. 762, 48 Am. St. Rep. 579, 17 So. 81.

"Freshets are regarded as ordinary which are well known to occur in the stream occasionally through a period of years, although at no regular intervals."

The storms, rain, and flood here were unusual and very extraordinary, and could not, in reason or from precedent, have been anticipated. Gould, Waters, 2d ed. § 211; Dorman v. Ames, 12 Minn. 451, Gil. 347; Berninger v. Sunbury, H. & W. R. Co., 203 Pa. 516, 53 A. 361; AEtna Mill & Elevator Co. v. Atchison, T. & S. F. R. Co., 89 Kan. 38, 130 P. 686; Louisville & N. R. Co. v. Conn, 166 Ky. 327, 179 S.W. 195; American Locomotive Co. v. Hoffman, 105 Iowa 343, 6 L.R.A. (N.S.) 252, 54 S.E. 25, 8 Ann. Cas. 773; Sentman v. Baltimore & O. R. Co., 78 Md. 222, 27 A. 1074; Greiner v. Alfred Struck Co., 161 Ky. 793, 171 S.W. 405; Ilfrey v. Sabine & E. T. R. Co., 76 Tex. 63, 13 S.W. 165.

A special verdict must cover all the issues in the case, including those admitted in the pleadings or undisputed in the testimony. Elliott v. Miller, 158 F. 868; Harbaugh v. People, 33 Mich. 241.

The special verdict here returned does not include and cover all the issues, and therefore the judgment entered on it cannot stand. Hodges v. Easton, 106 U.S. 408, 27 L.Ed. 169, 1 S.Ct. 307; Elliott v. Miller, supra; Standard Sewing Mach. Co. v. Royal Ins. Co., 201 Pa. 645, 51 A. 354.

The finding of the jury in the special verdict on the amount of damages is not sustained by the pleadings or the instructions of the court, and will not sustain any judgment. Johnson v. Northern P. R. Co., 1 N.D. 354, 48 N.W. 227.

If the jury intended to allow interest the verdict should have so found and so definitely stated. Fiore v. Ladd, 29 Ore. 528, 46 P. 145; Cookville Coal & Lumber Co. v. Evans, Tex. Civ. App. , 135 S.W. 750; Morrissey v. Morrissey, 180 Mass. 480, 62 N.E. 972.

Plaintiffs waived the right to interest by failing to request instructions thereon. Parsons v. Jameson, 70 N.H. 625, 46 A. 687; Hesse v. Zaffke, 183 Ill.App. 160.

The argument of counsel before the jury on a special verdict is limited to such verdict, and counsel has no right to argue generally. Morrison v. Lee, 13 N.D. 599, 102 N.W. 223.

The sole purpose of a special verdict is to submit to the jury certain questions which they are required to answer, without any knowledge of the effect of their answers. Ward v. Chicago, M. & St. P. R. Co., 102 Wis. 215, 78 N.W. 442; Morrison v. Lee, supra; Guild v. More, 32 N.D. 476, 155 N.W. 44; Snider v. Washington Water Power Co., 66 Wash. 598, 120 P. 88.

On special verdicts the court should instruct intelligently on the issues so presented. One of the points in issue was as to the unusual character of the storm. This was not touched upon. Lathrop v. FargoMoorhead Street R. Co., 23 N.D. 246, 136 N.W. 88; Ohio & M. R. Co. v. Thillman, 143 Ill. 127, 56 Am. St. Rep. 359, 32 N.E. 529; Kansas City, M. & B. R. Co. v. Smith, 72 Miss. 677, 27 L.R.A. 762, 48 Am. St. Rep. 579, 17 So. 81; Eagan v. Central Vermont R. Co., 81 Vt. 141, 16 L.R.A.(N.S.) 928, 130 Am. St. Rep. 1031, 69 A. 732; Pittsburg, Ft. W. & C. R. Co. v. Gilleland, 56 Pa. 445, 94 Am. Dec. 98.

This instruction should have been given without request. It covers an issue in the case. Rev. Codes 1905, § 7021, Comp. Laws 1913, § 7620; Putnam v. Prouty, 24 N.D. 530, 140 N.W. 93; Forzen v. Hurd, 20 N.D. 43, 126 N.W. 224.

Damages suffered by plaintiff from surface water diverted by highways is not traceable to any misconduct on the part of defendant. Carroll v. Rye Twp. 13 N.D. 458, 101 N.W. 894; Hannaher v. St. Paul, M. & M. R. Co., 5 Dakota 22, 37 N.W. 717; Moore v. Booker, 4 N.D. 543, 62 N.W. 607; McPherrin v. Jones, 5 N.D. 261, 65 N.W. 685.

Murtha & Sturgeon and Thomas Pugh, for respondent.

There was sufficient proof of negligence to go to the jury. The defendant should have known that the culvert built was entirely insufficient. The failure to provide for the run-off of such water as might reasonably be expected to come down the drainage was negligence for which defendant is answerable. Soules v. Northern P. R. Co., 34 N.D. 7, L.R.A.1917A, 501, 157 N.W. 823.

Building the embankment and culvert in most approved manner does not excuse defendant if the flowage is insufficient. Fremont, E. & M. Valley R. Co. v. Harlin, 50 Neb. 698, 36 L.R.A. 417, 61 Am. St. Rep. 578, 70 N.W. 263, 1 Am. Neg. Rep. 312; Houghtaling v. Chicago G. W. R. Co., 117 Iowa 540, 91 N.W. 811.

The testimony of expert engineers to the effect that the railway culvert was sufficient does not control over actual facts. The jury was not bound to accept the opinions of defendant's experts. 17 Cyc. 131, 262, 269, 276, et seq.; 5 Enc. Ev. 643; Laughlin v. Street R. Co., 62 Mich. 220, 28 N.W. 873; Jones, Ev. P 390, p. 491; Hull v. St. Louis, 42 L.R.A. 762, note; Potter v. Grand Trunk Western R. Co., 157 Mich. 216, 22 L.R.A.(N.S.) 1039, 121 N.W. 808; Com. v. Leach, 156 Mass. 99, 30 N.E. 163; 8 Decen. Dig. Evidence, P 574.

The defendant should have provided for the run-off of all water that might reasonably be expected, and this is a continuing duty. Soules v. Northern P. R. Co. supra.

The court need not submit to the jury questions admitted in the pleadings or upon which there is no dispute. Lathrop v. Fargo-Moor-head Street R. Co., 23 N.D. 246, 136 N.W. 88; State v. Hanner, 24 L.R.A.(N.S.) 35, note.

It is wholly immaterial whether or not defendant employed competent engineers. Hitchins Bros. v. Frostburg, 68 Md. 113, 6 Am. St. Rep. 422, 11 A. 826.

The test of liability is not the fitness of the engineer, but the efficiency of the work. Lion v. Baltimore City Pass. R. Co., 90 Md. 266, 47 L.R.A. 127, 44 A. 1045; Houghtaling v. Chicago G. W. R. Co., 117 Iowa 540, 91 N.W. 811.

Objections to the argument of counsel upon a special verdict come too late after counsel has closed. If objectionable argument or statements are made by counsel, the opposing counsel should enter his objections at the time, and should be specific in pointing out wherein the argument is objectionable, in order to give court and counsel an opportunity to correct any such error if error was made. Snider v. Washington Water Power Co., 66 Wash. 598, 120 P. 88; 38 Cyc. 1507, (1) 1509 J.; Columbia & P. S. R. Co. v. Hawthorne, 3 Wash. Terr. 353, 19 P. 25; West Chicago Street R....

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