Smith v. Chicago, Burlington & Quincy Railway Co.

• Decision Date: 19 March 1908
• Docket Number: 15,106
• Citation: 115 N.W. 755,81 Neb. 186
• Parties: JOHN R. SMITH, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

115 N.W. 755

81 Neb. 186

JOHN R. SMITH, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, APPELLANT

No. 15,106

Supreme Court of Nebraska

March 19, 1908

APPEAL from the district court for Richardson county: JOHN B. RAPER JUDGE. Affirmed.

AFFIRMED.

James E. Kelby, Francis Martin, Frank E. Bishop and Fred M Deweese, for appellant.

Reavis & Reavis, contra.

EPPERSON C. DUFFIE and GOOD, CC., concur.

OPINION

EPPERSON, C. J.

The plaintiff is the owner of a tract of land situate on the south bank of the Nemaha river. The course of the river for the distance which we need to consider may be stated as follows: From the northeast corner of the plaintiff's land the river flows in a northeasterly direction for about half a mile, thence south for a distance of nearly one mile, thence in a northeasterly course to and beyond a bridge of the defendant railroad company across the river, known as bridge 67. This bridge is about two miles east of the plaintiff's land. The defendant's railroad approaches the Nemaha river from the northwest, coming to a point near the north bank of the river where it turns south, half a mile east of the plaintiff's land, thence east paralleling the general course of the river west of the bridge. For a distance of about one mile west of the bridge the railroad company had heretofore constructed a roadbed or embankment, leaving the same without culverts or openings for the escape of flood waters. Plaintiff alleges, in his petition, in substance and in part, that the defendant's embankment or grade in its present condition catches all the flood waters, and flows the same to the south side of the river and back upon the lands of plaintiff; the opening under said bridge being insufficient to permit the proper escape of such flood waters, in consequence of which the plaintiff suffered the loss of certain crops during each of the years 1902, 1903 and 1904. Upon the trial of the case the court gave instruction No. 7, which is as follows: "You are instructed that, if you believe from the preponderance of the testimony in this case that the defendant railroad company raised its roadbed previous to the year 1902 high enough to arrest the flood water in the river in times of freshets between Pearsons Point and the bridge number 67 on east thereof, and that said water was thrown to the south side of said river, and that the bridge across the Nemaha river, being bridge number 67 as referred to in the testimony, and the openings or culverts, if any, in the embankment were not of sufficient size to permit the proper escape of said flood waters, and that by reason thereof the water was backed upon the land of plaintiff and held there until the growing crops of the plaintiff on his land were destroyed, then you are instructed that the defendant would be guilty of negligence, and you should find accordingly." It is contended that the instruction is erroneous because it condemns the construction as negligence, as a matter of law, simply because the grade and bridge interfered with the flood waters. In connection with instruction No. 7 we also consider instruction No. 8, which is as follows: "You are further instructed that, although you may believe from the evidence that defendant's crops were injured by flood waters, yet, before you can find for the plaintiff, you must be satisfied from a preponderance of the testimony that said overflow and damage to said crops was the direct and natural consequence of the negligence of the defendant in the proper construction of its roadway and bridges." Under these instructions, the right of the plaintiff's recovery is dependent entirely upon the damage done by the defendant in its wrongful construction of its railroad embankment and its bridge over the channel of the river. It is the contention of the defendant that it would be at fault only if at the time it constructed its grade it failed to use reasonable care in constructing its road in view of the flow of the waters of the river and the valley; and that, with this measure of care fulfilled, then in subsequent years of heavy rainfall and disastrous floods the company could not justly be held to be guilty of negligence should the grade interfere with the flood waters. Such objection, we think, was contemplated and obviated by the trial court, who further, by instruction No. 9, expressly told the jury that the defendant in this case would not be liable for damage occasioned by the overflow of lands caused by extraordinary floods or freshets, such as the defendant company could not reasonably have anticipated and provided for in the construction of its said bridge, although such damage may to some extent have been occasioned by such embankment and bridge over the river.

Complaint is made of instructions 5 and 6. In No. 5 the court instructed the jury as follows: "It was the duty of the defendant in planning and constructing said embankment and bridge to use and employ the engineering knowledge and skill at the time of such construction ordinarily practiced in the construction of such work, and to see to the practical application of such knowledge and skill to the work of constructing said bridge and embankment, among other things so as to allow the passage of water, such as is known to pass in said river annually, or which may be reasonably expected to occur occasionally, without regard to such great or sudden overflows as are often designated as the acts of God." By instruction No. 6 the jury were told that, if they found...