Rock Island & P. Ry Co. v. Krapp

• Decision Date: 21 April 1898
• Citation: 173 Ill. 219,50 N.E. 663
• Parties: ROCK ISLAND & P. RY CO. v. KRAPP.
• Court: Illinois Supreme Court

173 Ill. 219

50 N.E. 663

ROCK ISLAND & P. RY CO.

v.KRAPP.¹

Supreme Court of Illinois.

April 21, 1898.

Appeal from appellate court, Second district.

Action by Gustave Krapp against the Rock Island & Peoria Railway Company. From a judgment in favor of plaintiff, defendant appealed to the appellate court, where the judgment was affirmed. Defendant appeals. Affirmed.Henry Curtis, for appellant.

J. T. Kenworthy, for appellee.

CARTWRIGHT, J.

The original course of Coal Valley creek was from the north under the railroad track of appellant, and, after making a detour through bottom land, the stream returned, and passed out to the north under the track at a point further west. In 1889 appellant filled up the channel under its track, and cut a new channel along the north side of the track, across the neck of the bend in the stream. Appellee brought this suit November 15, 1895, to recover damages for injuries to his premises occupied as a saloon and residence, situated above the place where the change was made, and to his personal property therein, by the waters of the creek in a flood which occurred in June, 1892, alleging that the new channel was insufficient for the proper discharge of the waters of the creek, and that the damages to his premises resulted from the acts of appellant in making the change. There was a verdict for appellee for $1,800, but upon motion for a new trial the court required $800 to be remitted, which being done, the motion for a new trial was overruled, and judgment entered on the verdict. The judgment has been affirmed by the appellate court.

At the trial, the principal controversy was whether the new channel made by defendant was as efficient, for the purpose of carrying off water in times of flood, as the old channel. There was evidence tending to prove that the channel, before the acts complained of, did not carry off all the waters in case of flood; but in such cases plaintiff's premises and the surrounding land were always flooded, and that the natural conditions and surroundings were such as to produce that result.

The errors complained of consist in giving the instructions submitted by the plaintiff. There were three of these instructions, and, standing by themselves, they were all erroneous and misleading. The only question fairly open to consideration is whether they were injurious to defendant when taken in connection with the instructions given on its part. It is the duty of the court to harmonize instructions so that they will present the legal questions in a consistent and intelligible manner to the jury, but if, upon an examination of all the instructions, it appears that they were not calculated to mislead the jury, it is not ground for reversal; and, in considering the whole series in this case, we are inclined to the opinion that the errors in the instructions for plaintiff were substantially cured by those given at the request of defendant.

The first of the instructions objected to, in stating the liability of defendant, told the jury that if it changed the channel of the creek, and made an artificial channel, then it was its duty to provide in such artificial channel for the proper discharge of the water which should flow in the creek. The second stated this duty to provide for the proper discharge of the water at such occasional great floods as the creek was subject to at indefinite intervals; and the third, in terms, made the defendant liable for all the injurious...