Sentman v. Baltimore & O.R. Co.

• Decision Date: 16 November 1893
• Citation: 27 A. 1074,78 Md. 222
• Parties: SENTMAN v. BALTIMORE & O. R. CO.
• Court: Maryland Court of Appeals

27 A. 1074

78 Md. 222

SENTMAN v. BALTIMORE & O. R. CO.

Court of Appeals of Maryland

November 16, 1893

Appeal from circuit court, Cecil county.

Action by Eli S. Sentman against the Baltimore & Ohio Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Argued before ROBINSON, C.J., and BRYAN, McSHERRY, FOWLER, BOYD, and BRISCOE, JJ.

Albert Constable and H. Arthur Stump, for appellant.

John K Cowan and John S. Wirt, for appellee.

BRISCOE J.

This was an action on the case, instituted in the circuit court for Cecil county by the appellant against the appellee, to recover damages for alleged injuries to the appellant's property, caused by an overflow of surface water from ditches and drains on a railroad constructed by the defendant corporation. The appellant is the owner of & farm in Cecil county, and contends that the defendant company, in the construction of its railroad, had, by artificial cuts, fills and drains, changed the natural surface drainage of certain lands, and had caused the water to flow upon his land, so that in the months of August, 1889, and of July, 1891, his property had been seriously damaged thereby. The defense on the part of the company was that the damage complained of was caused by an extraordinary and unusual rainfall; that is, by the vis major. The verdict and judgment were in favor of the defendant, and the plaintiff has appealed.

At the trial the court granted all the instructions asked for on both sides, and the only exception is to the granting of those on behalf of the defendant. The main objection is urged to the fourth and fifth prayers, and it is upon these that the appellant rests his appeal. It is therefore on these two prayers that the questions arise to be decided by this court. In the fourth instruction the jury were told that if the injuries to the plaintiff's property were caused solely by an extraordinary and unusual rainfall or flood, and not by want of ordinary care and skill upon the part of the defendant in the construction or maintenance of its railroad then their verdict should be for the defendant. To this instruction the plaintiff made special exception on the ground--First, that there was no legally sufficient evidence before the jury, upon which it could properly be left to it to find that the injuries were caused solely by an extraordinary and unusual rainfall or flood; and, secondly because there was no legally sufficient evidence of any such extraordinary or unusual rainfall or flood as comes within the description of what is called an "act of God." The exception, both general and special, was overruled. We have carefully examined the evidence set forth in the record and are of opinion that there was no error in the overruling of this exception. The facts upon this branch of the case are these: McNamee, a witness for the defendant, testified that there was a very heavy rain on the night of July 28, 1891, and it rained. harder than he had ever known it during the seven years he was there; did not believe he had ever known it to rain harder in his life. The witness Rutter stated that he lived in sight of plaintiff's house, and had resided there more than 35 years; that he remembers the storm of July, 1891, and thinks it was the heaviest rain he had ever known in that locality. There was an extraordinary fall of water. The witness Craig testified that he had resided in that section for 15 years; that he remembers the storm of July 28, 1891, and it was an extraordinary rain. It began to rain between 10 and 11 o'clock at night, and rained continuously until about 4 o'clock the next morning. It was the heaviest fall of rain he had ever seen in the same time. He may have seen it rain as hard, but he never saw it rain so hard so long. He was sitting up with a sick man, John Russell, who lives right at the station. He noticed the storm particularly, and went out on the porch two or three times during the night. There may have been as much of a rainfall in the flood of 1876, but then it rained two days and nights. And...