Riddle v. Baltimore & O. R. Co., 10459

• Citation: 137 W.Va. 733,34 A.L.R.2d 1228,73 S.E.2d 793
• Decision Date: 13 January 1953
• Docket Number: No. 10459,10459
• Court: West Virginia Supreme Court
• Parties: , 34 A.L.R.2d 1228 RIDDLE, v. BALTIMORE & O. R. CO.

Page 793

73 S.E.2d 793

137 W.Va. 733, 34 A.L.R.2d 1228

RIDDLE, v. BALTIMORE & O. R. CO.

No. 10459.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 24, 1952.

Decided Dec. 22, 1952.

Dissenting Opinion Jan. 13, 1953.

Syllabus by the Court.

1. 'That which reasonable human foresight, pains, and care should have prevented can not be called an act of God.' Atkinson v. Chesapeake & Ohio Railway Co., 74 W.Va. 633 .

2. 'One obstructing a natural watercourse will not be excused unless an act of God is the sole and proximate cause of the injury thereby complained of.' Mitchell v. Virginian Railway Co., 116 W.Va. 739, Pt. 3 Syl. .

3. One obstructing a natural water course by the construction of bridges, trestles or culverts thereover must provide against floods which should be reasonably anticipated in view of the history of the water course and natural or other conditions affecting the flowage of the stream; and though reasonable care may have been exercised originally in the construction of such bridges, trestles or culverts, if changed conditions and subsequent developments prove that the bridges, trestles or culverts, as originally constructed, have become inadequate to serve the waters of the stream during its normal flowage and during storms which may reasonably be anticipated, there is a duty to meet the changed conditions and failure to perform that duty will ground an action instituted by one injured by such neglect of duty for the recovery of damages resulting therefrom.

4. 'Before directing a verdict in defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence. Fielder v. Service Cab Co., W.Va. , 11 S.E.2d 115, Pt. 1 Syl.' Boyce v. Black, 123 W.Va. 234, pt. 1 syl. .

5. In an action of trespass on the case against a railroad company to recover damages for the flooding of plaintiff's property, resulting from the alleged inadequacy of defendant's culvert which serves the waters of a stream upon which plaintiff's property is located, it is not error for the trial court to admit evidence as to rainfalls occurring at the time plaintiff's property was allegedly damaged at points not within the drainage basin of the stream served by the culvert and prior rainfalls not within the drainage basin of the stream, where the record discloses that defendant's culvert is located in a general climatological area, extending both within and without the drainage basin, which is uniformly subject to sudden and heavy rainfalls.

6. In an action instituted by a plaintiff to recover damages for the flooding of his property allegedly resulting from the inadequacy of a culvert constructed and maintained by the defendant downstream from plaintiff's property, it is not error to admit the testimony of officials of the United States Weather Bureau and the United States Army Engineers as to the custom and practice used by the governmental departments which they represent in the making of rainfall surveys, where such rainfall surveys have become merged with and are a part of systematic governmental records kept for use as evidence when required.

7. Records kept by the officials of the United States Weather Bureau and the United States Army Engineers, having supervision of the gathering and recording of data concerning rainfalls in a particular area, if made with the intent that they be kept for use when required as evidence, are competent evidence of the facts stated therein.

8. In an action brought by a plaintiff to recover damages for the flooding of his property due to the alleged inadequacy of a culvert maintained by the defendant downstream from plaintiff's property, it is not error for the trial court to permit the exhibition to the jury of an official isohyetal map which, because it is a governmental record, cannot be introduced in evidence, where a photostatic copy of the map, which is not as clear as the original map, was introduced in evidence and exhibited to the jury.

9. The test whether damages to real property are permanent or temporary is whether the act which produced the injury is productive of all of the damage that can ensue, or whether the injury is intermittent and occasional, or the cause capable of being remedied, removed or abated. In the former case the damages are permanent, and in the latter case the damages are temporary.

10. In an action for the recovery of temporary damages to real property, the measure of damages is the cost of repairing the property and restoring the same to its original condition, and expenses and loss of rentals, if any, are caused by the alleged injury.

11. 'As a general rule the proper measure of damages for injury to personal property is the difference between the fair market value of the property immediately before the injury and the fair market value immediately after the injury, plus necessary reasonable expenses incurred by the owner in connection with the injury. When, however, injured personal property can be restored by repairs to the condition which existed before the injury and the cost of such repairs is less than the diminution of the market value due to the injury, the measure of damages may be the amount required to restore such property to its previous condition.' Pt. 7 Syl., Cato v. Silling, , handed down at this term of Court.

12. The case of McHenry v. City of Parkersburg, 66 W.Va. 533 [66 S.E. 750, 29 L.R.A.,N.S., 860], appraised and distinguished.

13. In an action instituted for the recovery of temporary damages to real property, an instruction setting forth the correct measure of damages, but which instructs the jury that in the ascertainment of damages, the jury may 'consider the assessed value' of the property damaged as of the first day of the tax year, was properly refused.

14. 'An instruction calling the jury's attention to a particular, uncontrolling fact or circumstance, and thereby giving it undue prominence, is properly refused.' Cain v. Kanawha Traction & Electric Co., 85 W.Va. 434, pt. 4 Syl. .

15. In an action at law, in which the jury has been properly and fully instructed as to the burden of proof and the preponderance of the evidence, it is not error for the trial court to refuse to give an instruction on the unanimity of the jury.

Samuel A. Powell, Harrisville, Kendall H. Keeney and Robt. B. Stotler, Clarksburg, for plaintiff in error.

Wm. Bruce Hoff, Parkersburg, Harry E. Moats, Harrisville, for defendant in error.

RILEY, President.

In this action of trespass on the case, instituted by Collie T. Riddle against The Baltimore and Ohio Railroad Company in the Circuit Court of Ritchie County, plaintiff seeks to recover damages to his residence property, situate between Fream Street and Bunnells Run in the City of Pennsboro, Ritchie County, alleged to be due to the flooding of his property by the backwater of Bunnels Run, allegedly caused by defendant's negligence in maintaining an inadequate culvert under its railroad fill. To a judgment in the amount of $1,285.21, based on a jury verdict, the defendant prosecutes this writ of error.

Bunnells Run drains 1,250 acres of land north of the defendant's railroad fill and culvert in the City of Pennsboro. The run forks approximately 1,800 feet upstream from the culvert. From the forks to the culvert the run flows in a southwesterly direction. Plaintiff's property, which is approximately 1,300 feet upstream from the upper end of the culvert, faces Fream Street and its back or eastern line is contiguous with the center line of the run.

Several hundred feet below the Riddle property Bunnells Run flows under Raymond Street, a cross-street running in an easterly and westerly direction, and then under Church Street about 450 feet south of and parallel to Raymond Street. Several hundred feet to the south of Church Street the stream enters the upstream opening of the railroad culvert, and passing through for a distance of 121 feet proceeds to and under United States Route No. 50, which highway is to the south of and substantially parallel to defendant railroad company's tracks, which are located on top of the fill and above the defendant's culvert.

The fill is 40 feet high from the floor of the culvert. The inside dimensions of the culvert are: height 8.9 feet; width 5.95 feet; the inside measurement between the end of the wings of the stone wing wall at the north end of the culvert is 11.3 feet; and the height of the arch of the culvert from the side walls is 3.1 feet.

The elevations of the bed of Bunnells Run above sea level are: at the north end of the bridge on U. S. Route No. 50, 813.26 feet; at the downstream end of defendant's culvert about 200 feet upstream above U. S. Route No. 50, 813.88 feet; at the upstream end of the culvert, 815.27 feet; at the north side of the bridge at Church Street, 821.50; at the north side of the bridge on Raymond Street, 824.38 feet; and at the forks of the run above plaintiff's residence, 832.97 feet. At a point near the front door of plaintiff's residence on the walk connecting the residence with Fream Street, and at a point at the northerly side of Denton Davis' residence, situated a short distance south of plaintiff's residence, the sea level elevations are 834.88 feet and 832.65 feet, respectively.

Sea level readings of the high water marks taken by plaintiff's witness, Bernard Rinehart, a civil engineer, at an incinerator (821.29), approximately 65 to 70 feet downstream from the fill and on the basement wall of a store, designated in the record as 'McCollough's Store' (837.84), 75 to 80 feet upstream from the fill, showed that the water above the fill attained a height 16.55 feet higher than the water below the fill. These readings support the testimony of defendant's witness, George M. Allen, who lived two...