Sabine & E. T. Ry. Co. v. Wood

• Decision Date: 07 February 1888
• Citation: 7 S.W. 372
• Parties: SABINE & E. T. RY. CO. v. WOOD.
• Court: Texas Supreme Court

Page 372

7 S.W. 372

SABINE & E. T. RY. CO. v. WOOD.

Supreme Court of Texas.

February 7, 1888.

Appeal from district court, Jefferson county; W. H. FORD, Judge.

Action by R. L. Wood, appellee, to recover $2,253.25, as damages for injuries to his person and property, alleged to have been sustained by him by reason of the negligence of the Sabine & East Texas Railway Company. There was a verdict for plaintiff, and judgment thereon for $1,200, with interest at 8 per cent. The company took this appeal.

O'Brien & John, for appellant. Tom J. Russell and Hal W. Greer, for appellee.

STAYTON, J.

This action was brought by the appellee to recover damages for the loss and destruction of personal property owned by him, and for injury done to his person, all of which he alleged resulted from the failure of the appellant properly to construct its railway near the town of Sabine Pass. The defendant alleged that its road-bed was properly constructed, and that the injury resulted from water driven upon the land by an unusually severe storm, "which the greatest care and skill in the construction of its road-grade could not have prepared against." The evidence shows that Sabine Pass is situated on the west side of Sabine lake and pass, and that the land there, and for a considerable distance above, is elevated only about two feet above the sea level. The land back is perhaps lower, and for many miles into the interior the country presents this low, flat surface, over which, at times of high wind from the east and south-east, water from the lake, pass, and gulf spread. The appellant constructed its road-bed some 1,200 or 1,500 feet west of the west bank of the pass, but at the town of Sabine Pass it approached near to the shore. Its road-bed, which consisted of an embankment of earth, was four or five feet high, and between this and the lake or pass a part of the town of Sabine Pass was situated. The appellant was living in a house in that part of the town which was destroyed by high water that came in during a high wind on June 14, 1886, and thus was his property destroyed, and personal injury received by himself. The evidence tends to show that, prior to the construction of the railway, water frequently came over the land, but that it would flow into the back country, and not become deep; but that upon this occasion its flow was impeded by the railway embankment to such extent that between the railway and the shore the water became four or five feet deep, while there was but little water on the west side of the railway. The great weight of testimony tends to show that such winds and overflows had frequently occurred before the railway was built, but without injury to property; and there is some testimony tending to show that the company's engineer was informed that the embankment, if constructed solidly at such height, would bring about such results as ensued. The evidence renders it reasonably certain that the destruction of the house in which plaintiff's property was, as well as its loss and his injury, resulted from the accumulation and deepening of the water caused by the railway embankment, and that but for it the loss would not have occurred.

The court instructed the jury that it was the duty of the railway company, in the construction of its road-bed, "to use that degree of care and prudence in so constructing its road-bed so as to provide against damages to such adjacent property as a prudent, cautious, and careful man would do to protect himself against damages to his own property." This charge was as favorable as the appellant could ask. The court, however, instructed the jury that if the appellant "constructed its road-bed or grade in such way and in such manner as to guard against ordinary freshets, overflows, tides, etc., so as to prevent damage therefrom to adjacent property, it would not be liable for damages arising from an extraordinary or unusual rise or overflow of water, such as could not have been foreseen or anticipated by the use of the greatest care, skill, and caution in the construction of its road-bed." It is urged that the giving of this charge was error. The charge certainly stated a correct rule, and, if the appellant was of the opinion that the exercise of a less degree of care would have relieved it from liability, a charge upon that subject should have been asked. If the charge had informed the jury that nothing less than the exercise of the highest skill, care, and caution would relieve the appellant from liability for an injury resulting from an extraordinary or unusual rise or overflow, a different question would arise. There is no reason to believe that the jury were misled, if they considered the entire charge.

It is claimed that the verdict of the jury was contrary to, and not supported by, the evidence, in that it is claimed that the evidence clearly showed that the injury resulted from an extraordinary, sudden, and violent storm, which could not have been anticipated. The evidence is not of this character; to the contrary, it tends most strongly to show that such storms had frequently occurred before, and that, but for the want of proper care in the construction of the appellant's railway, injury, most probably, would not have resulted from such a storm.

There was an application for a new trial, based on testimony alleged to be newly discovered, which was overruled, and this is assigned as error. This evidence, as stated in the affidavit of the witness, was "that he had lived at Sabine Pass from 1860 until 1869. * * * That in 1865, before the Sabine & East Texas road was built, there was a storm, when the water and wind together carried away houses located on the front of Sabine Pass, between the water of the pass and where the road-bed of defendant is now located. That he is acquainted with the situation and bearing of the pass, and that a wind blowing from the south-east would blow directly up the pass, and that houses on the front of the pass would be in a very exposed situation; and that the force of the wind and waves would...