Shoemaker v. Indiana Railways and Light Company

• Decision Date: 04 January 1922
• Docket Number: 10,958
• Citation: 133 N.E. 591,77 Ind.App. 261
• Parties: SHOEMAKER v. INDIANA RAILWAYS AND LIGHT COMPANY
• Court: Indiana Appellate Court

133 N.E. 591

77 Ind.App. 261

SHOEMAKER v. INDIANA RAILWAYS AND LIGHT COMPANY

No. 10,958

Court of Appeals of Indiana

January 4, 1922

From Clinton Circuit Court; Joseph Combs, Judge.

Action by Jacob Shoemaker against the Indiana Railways and Light Company. From a judgment for defendant, the plaintiff appeals.

Affirmed.

Earl F Gruber and Barnabas C. Moon, for appellant.

Bell Kirkpatrick & McClure and Lex J. Kirkpatrick, for appellee.

OPINION

MCMAHAN, J.

Complaint by appellant against appellee to recover damages for the alleged flooding of certain land, owned by appellant, by the construction of its railway embankment and an insufficient bridge across Killmore Creek. The complaint in substance alleges that appellee owned and for years maintained an interurban railroad from Kokomo to Frankfort, extending across appellant's land and crossing said creek at a point about 200 feet north of the northeast corner of said lands. When the railroad was constructed appellee placed a concrete bridge across the creek. This bridge was destroyed by the 1913 flood. The railroad was first constructed so that the grade thereto extended across the high-water channel of the creek and totally closed the water channel except that part occupied by bridge. In 1913, appellee constructed a new bridge of slightly larger capacity than the old one, but it was insufficient to carry the water which necessarily passed through the creek, and from the time of the construction of the new bridge in 1913, appellee so maintained such bridge and embankment as to make the channel of the creek less than it had been from time immemorial. The complaint further alleges that by reason of the wrongful conduct of appellee in so obstructing the channel of the creek by the maintenance of said bridge and embankment, the water of the creek was increased by rains during the spring of each year after 1913 and could not flow through the space left under the bridge; that by reason of the conduct of appellee in constructing and maintaining said embankment and bridge the water overflowed appellant's land and damaged same.

There was a trial by jury which resulted in a verdict and judgment for appellee from which appellant appeals. The errors assigned relate to the giving of instructions Nos. 2 and 3 given by the court on its own motion and instructions Nos. 6, 10, 14 and 16 given by the court at the request of appellee.

The objections to instructions Nos. 2 and 3 are that they "place upon plaintiff the burden of proof of defendant's failure to fulfill the conditions of the statute granting it the right to build and maintain its railroad across Killmore Creek; whereas the contention of plaintiff is that the burden of proof upon this question is upon the defendant if such defense is within the issues." Appellant insists that since the only answer is a general denial that defendant cannot under that issue confess and justify the flooding as charged in the complaint; and that a justification of the trespass must be specially pleaded.

In order to get the full force of appellant's contention it is well to keep in mind the statute authorizing interurban railroads to construct bridges across streams and the averments of the complaint. Section 5675 Burns 1914, Acts 1901 p. 461 provides that any street railroad company theretofore or thereafter organized desiring to construct or having theretofore constructed any interurban or suburban railroad shall in addition to other rights and powers theretofore granted possess the general powers and be subjected to the liabilities and restrictions as follows: "Fifth. To construct its road across any stream of water, watercourse, road, highway, railroad or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property, and, with the consent of the authorities of the proper county, town or city, on any street, road or highway, but the corporation shall restore the stream or watercourse, street, road or highway to its former state, or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises."

The Supreme Court in Cleveland, etc., R. Co. v. Wisehart (1903), 161 Ind. 208, 67 N.E. 993, in discussing a similar statute relative to the rights and duties of steam railroads in the construction of a bridge over a stream held that in the construction of a railroad across a watercourse the railroad company was required to exercise care and skill to avoid injury to property of another and that in the absence of unlawfulness or negligence it was not liable to adjoining lands arising from the obstruction of a watercourse by a railroad embankment. Counsel, there as here, contended that the act complained of was unlawful. In reply to that contention the court said:

"Undoubtedly a railroad company, in the exercise of its rights under this statute in constructing its road upon or across any stream or watercourse, must do so in such a manner as not thereby to injure the property of other persons; and, after the crossing is made, it is required to restore such stream or watercourse to its former state, at least so far as is necessary to preserve its use and franchise. * * * But the company, in building its road upon or across such stream or watercourse, is not to be considered or held an absolute insurer against all injury or damage to the property of others, but it is required to exercise proper care and skill under the circumstances in order to avoid injury or damage to the property of another; but beyond this it is not required to go. * * * The statute hereinbefore set out expressly authorized the railroad company to construct its road upon or across the stream or watercourse in controversy, subject to the conditions therein provided, and for merely doing what the law authorized certainly affords appellee no cause of action. Appellant undoubtedly had the right to construct the trestle bridge and the embankment, as shown, on its own premises or right of way. These were necessary, as we may assume, to the successful operation of its road. Therefore, to render tortious the act of appellant in allowing or causing the dirt used in the construction of the said embankment to spread or fill up the ditch or waterway, as alleged, there should have been some averments or allegations to show that the act of filling up the ditch on its own lands, and thereby obstructing the flow of the water, was either wilfully or negligently done to the injury of appellee. * * * The rule is well settled that if a person does a lawful act on his own premises he is not liable for damages resulting therefrom, unless the act was so done as to constitute actionable negligence. * * *"

And in Wallace v. Columbia, etc., R. Co. (1890), 34 S.C. 62, 12 S.E. 815, cited in the Wisehart case with approval, it was held that in an action against a railroad company for damage done to land, through which a right of way had been given, by the obstruction by defendant of a flowing stream, the complaint failed to state facts sufficient to constitute a cause of action, where it failed to allege facts tending to show that the railroad company, in constructing its roadbed, wantonly, negligently or unskillfully obstructed the streams.

The court in Cleveland, etc., R. Co. v. Wisehart, supra, after reviewing the authorities, said: "There is an entire absence in the paragraph in question of any direct averments or statements of fact to show that the injury or grievance of which appellee complains was due either to the negligence or wilfulness of appellant, and for this reason, if for no other, the pleading is insufficient on demurrer."

In the recent case of Watts v Evansville, etc., R. Co. (1921), 191 Ind. 27, 129 N.E. 315, the Supreme Court, in discussing cl. 5, § 5195 Burns 1914, Acts 1911 p. 136, requiring a railroad to construct its road across a watercourse so as not to interfere with the free use of the same and providing that it should restore the stream or watercourse to its former state or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises, held that the duty imposed by statute rested upon the railroad at common law and that the statute was simply declaratory of the common law, and in discussing the duties of a railroad company in erecting and maintaining the structure there involved, it was said: "It was the duty of appellees to exercise ordinary care, in view of all these conditions, to construct and maintain its roadbed in such a manner as not to expose the lands of adjacent proprietors to the danger of being damaged by water dammed, diverted, or caused to flow in an unnatural manner, or with increased volume or current, by reason of obstructions created by the structure. If the roadbed was constructed and maintained with such openings for the passage of water, and in such a manner as persons of ordinary prudence and reasonable skill would have constructed a like work, in view of all the conditions known, or that might have been learned or foreseen by the exercise of reasonable care on their part, then the duty of appellees was fulfilled. If not so constructed, the conduct of appel...