St. Louis, I. M. & S. Ry. Co. v. Hoshall

• Decision Date: 22 April 1907
• Citation: 102 S.W. 207
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. HOSHALL.
• Court: Arkansas Supreme Court

102 S.W. 207

ST. LOUIS, I. M. & S. RY. CO. v. HOSHALL.

Supreme Court of Arkansas.

April 22, 1907.

Appeal from Circuit Court, St. Francis County; Hance N. Hutton, Judge.

Action by Nannie A. Hoshall against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Appellee alleged in her complaint that appellant had negligently allowed a trestle under its track which was the natural drainage for waters from a creek running through appellee's land, to fill up, diverting the creek from its natural course, and causing it to pass over appellee's land; that 60 acres of appellee's land were thus overflowed, and the value thereof diminished by the washing away of the soil; and that by reason of such overflow the crops were totally or partially destroyed, all to her damage in the sum of $1,500, for which she asked judgment. Appellant answered, denying inter alia that appellant was negligent in allowing the waters of the creek to fill up, and denying any liability for the overflow of appellee's land, and setting up affirmatively that any cause of action appellee might have was more than three years prior to the institution of the suit. The jury in response to interrogatories returned special findings: (1) That the negligence of the railway company consisted in not keeping Trestle No. 1,363 open. (2) That the negligent act first occurred within the last three years. (3) That the negligent act was necessarily injurious to the land of plaintiff. (4) There was damage to crops in the sum of $420, and damage by washing of the land $150; making a total of $570, for which a verdict was returned, and judgment entered for appellee.

T. M. Mehaffy and J. E. Williams, for appellant. N. W. Norton, for appellee.

WOOD, J. (after stating the facts).

Three special propositions are urged by appellant to reverse the judgment:

First. That the evidence shows that the damage to appellee's land and crops caused by the overflow of which appellee complains, was not the result of the negligence of appellant in allowing the trestle under its track to fill up, as alleged, but that the primary and proximate cause of appellee's injury and damage was the filling up of the natural outlets for the water below appellant's trestle; that the natural drainage for the water below the trestle was first obstructed, through the fault and negligence of others, not appellant; and that this filling up of the natural drainage far below appellant's trestle continued by gradual processes back towards the trestle, until it finally reached the trestle and caused that to be obstructed, and also the resultant overflow on appellee's land. The appellee contends on the other hand that the negligence of appellant in failing to keep its trestle open, so obstructed the natural drainage, that there was not sufficient current in the natural water courses below to keep them free from débris of all sorts, and that the diversion of the water by the filling up of the trestle caused driftwood and dirt to accumulate in the channels below the trestle which gradually increased till the natural streams were obstructed and diverted which produced the overflow that caused appellee's damage. It will be observed that this is peculiarly a question of fact. We do not see that any useful purpose could be subserved by setting out and discussing the evidence bearing upon this issue. The evidence is set forth pro and con in the respective briefs. The court correctly instructed the jury on this issue, and the evidence is sufficient to support the verdict.

Second. The court gave the following instruction containing three paragraphs: (1) If you find the defendant liable, the measure of damages to the crops is the value of the difference between what was produced and what would have been produced had the water not caused the injury, less the difference between the cost of producing and gathering what was produced, and the cost of producing and gathering an average crop, as you may find from the testimony. (2) The measure of damages to the land is the difference in its market value before and since the injury complained of, and caused by the injury, as you may find from the proof. (3) You will not consider any damage to either land or crops, except such as is proven to have accrued within three years next before the filing of this suit, which was August 14, 1905. This court in Railway v. Yarborough, 56 Ark. 612, 20 S. W. 515, announced the rule for ascertaining the damage caused by the destruction of growing crops from overflow as follows: ...