Sabine & E. T. R'Y Co. v. Joachimi

• Decision Date: 30 January 1883
• Docket Number: Case No. 1545.
• Citation: 58 Tex. 456
• Court: Texas Supreme Court
• Parties: THE SABINE & E. T. R'Y CO. v. H. W. JOACHIMI.

58 Tex. 456

THE SABINE & E. T. R'Y CO.

v.H. W. JOACHIMI.

Case No. 1545.

Supreme Court of Texas.

Jan. 30, 1883.

APPEAL from Jefferson. Tried below before the Hon. W. H. Ford.

The opinion sufficiently states the case.

O'Brien & John, for appellant.

… III. The court erred in permitting plaintiff to testify (as a witness) what would have been produced by his ground that was planted in certain vegetables, growing at the time of the flooding of his land, and what gross sums would have been realized for each kind and lot of the vegetables in the Beaumont market if the ground had not been overflowed by water, without any attempt at the proof of the expense to be incurred in cultivating them to maturity and in marketing them, as a measure of the damages of plaintiff sustained by the flooding of his lands, over the objection of defendant that such was not the legal method of proving plaintiff's damages, but that he should prove his actual loss, with interest thereon, etc. Smith v. Sherwood, 2 Tex., 464;Close v. Fields, 13 Tex., 626;Cole v. Tucker, 6 Tex., 266; Sedgwick on Damages, par. 36 and 37.

… VI. The court erred in the second and third sections of the charge, in that the jury was not sufficiently or correctly instructed as to the measure of damages in this cause. Mims v. Mitchell, 1 Tex., 443;Wright v. Wright, 3 Tex., 168;Carter v. Wallace, 2 Tex., 206;Paul v. Perez, 7 Tex., 345;Chrisman v. Miller, 15 Tex., 160;Denison v. League, 16 Tex., 406et seq.;Thompson v. Shannon, 9 Tex., 537;Mitchell v. Zimmerman, 4 Tex., 78, 79;Love v. Wyatt, 19 Tex., 316;Oliver v. Chapman, 15 Tex., 408;Bradshaw v. Mayfield, 24 Tex., 482.

Tom J. Russell, for appellee.

… II. The court did not err in permitting plaintiff to prove the condition of his various crops, the amount of work performed in preparing land and in manuring the same, so that the jury could estimate the real value of the crop and the amount of the damages by the overflow of water caused by defendant's negligence. For the evidence given on the trial as to the nature of the damages in such cases, see H. & G. N. R. R. Co. v. Parker, 50 Tex., 330;Hope v. Alley, 9 Tex., 394;30 Tex., 224;Simmons v. Brown, 5 R. I., 299, in Sedgwick's Leading Cases on Measure of Damages, 694, and cases cited.

WILLIE, CHIEF JUSTICE.

Appellee sued the Sabine & East Texas Railway Company to recover damages for the loss of a growing crop of vegetables and for temporary injury to land caused by an overflow of water, resulting from the negligent manner in which appellant's railway was constructed upon land of appellee at and near the place where the damage occurred.

The petition charged that plaintiff below gave the company the right of way across the land free of cost, but with a stipulation that the road should be so constructed that it should not cause an overflow of water on the premises of the plaintiff, and over his field in particular; and that defendant promised that the passage way for the water through the grade of the road should be sufficiently large to carry off all drainage water from the surface of the land on the east side of the grade, the natural drainage of the water falling on plaintiff's premises being from east to west, and said premises lying west of the railroad. It was charged that the road, instead of being constructed in this way, was so negligently built that it did not allow free egress to the water, but backed it upon plaintiff's garden and premises to some depth, causing the destruction of a large portion of the crop of vegetables which he was growing for market, and injuring the unplanted ground in such a manner as to delay its preparation for use, and render it more difficult of cultivation.

It was also charged that previous to the date of the injury complained of, the attention of the company's agent was called by plaintiff to the manner in which the road was constructed, and to the damage that must naturally result to the premises in case of a heavy fall of rain, and that the agent promised to remedy the defects in the road, but it was never done. Plaintiff claimed as the measure of his damages what the crop would have brought in the market at Beaumont, the county site of Jefferson county. As damages to the unplanted land, he claimed the value of the additional labor required to prepare it for planting, and which would not have been necessary had the soil not been hardened by the overflow. He further claimed that he was thereby delayed in planting this portion of his crop, and hence was later in getting it to market, and obtained, for this reason, a less price for it, as vegetables always sold better early than they did late in the season. He also alleged the defendant's negligence to have been wilful, and claimed punitive damages.

A demurrer and general denial were pleaded by defendant. Upon the trial plaintiff offered himself as a witness to prove the contract between himself and the company. Defendant objected on the ground that the contract was admitted to be in writing, and was the best evidence of its contents, and that defendant had not received notice to produce it on the trial, and hence parol evidence was inadmissible. The court overruled the objection, and the plaintiff was allowed to give parol evidence of its contents. The testimony on the part of the plaintiff substantially supported the averments of his petition, the proof being, however, that a large portion, and not the whole of his crop, was destroyed. In some particulars there was conflicting evidence offered on the part of the defense. Among other things, that the plaintiff was allowed to prove, over the objection of defendant: “What would have been produced by his ground that was planted in certain vegetables which were growing at the time of the flooding of his land, and what gross sums would have been realized for each kind and lot of the vegetables in the Beaumont market, if the ground had not been overflowed by water.” Among other objections interposed to this evidence was that “it was not the correct and legal method of proving the damages of plaintiff, but that he should prove his actual loss with interest thereon from the time it occurred, and any profits only which plaintiff was by defendant's acts prevented from making.” The charge of the court as to the measure of damages in case the allegations of the petition were sustained was substantially as follows: “That the jury would find such sum of money by way of actual damages, as they believed, from the evidence, the plaintiff had sustained to his crop,...