St. Louis, Iron Mountain & Southern Railway Company v. Saunders

• Decision Date: 13 January 1908
• Citation: 107 S.W. 194,85 Ark. 111
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. SAUNDERS
• Court: Arkansas Supreme Court

107 S.W. 194

85 Ark. 111

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. SAUNDERS

Supreme Court of Arkansas

January 13, 1908

Appeal from Clark Circuit Court; Jacob M. Carter, Judge; affirmed.

Judgment affirmed.

Tom M Mehaffy and J. E. Williams, for appellant.

1. The court erred in the admission of testimony as to the rental value of the land. The effect of permitting appellee to introduce testimony to show what it cost to plant and cultivate the crop up to the time of its destruction, and then to recover for the rent of his land on testimony as to the rental value of the whole farm, was to magnify his damages, and set up a measure of damages contrary to the rule laid down by this court. He cannot recover both rent of land and value of crops. 56 Ark. 612.

2. Appellant should have been permitted to introduce testimony offered to show that the creek overflowed other farms and that other crops were destroyed both above and below. There would be no liability on the part of the appellant if the overflow was general and inevitable, nor if there was another concurrent cause which alone would have caused the destruction.

3. It was error to refuse the fourth instruction requested by appellant to the effect that the burden of proof was on the appellee to show that appellant in building its roadbed so obstructed or impeded the natural stream or flow of the water, etc., and constructed the same in such a careless and unskillful manner as to cause the damage.

4. If it was a well known fact and understood by appellee that the creek at this point would overflow and destroy the crops appellant ought not to be held liable therefor, and appellee should be held to have assumed the risk attendant upon his planting a crop at that point. The ninth instruction asked by appellant should have been given.

John E Bradley, for appellee.

1. In this case, the crops being too young and immature to have a market value, the measure of damages is the rental value of the lands. Sedgwick on Dam. (8 Ed.), §§ 125, 184, 191*, 952; 34 Am. & Eng. R. Cas. 199; 47 Ga. 260; 21 L. R. A. 608. And if there was error in admitting testimony as to the cost of preparing and seeding the land for the crops, which is not conceded, it was rendered harmless by the court's sixth instruction limiting the measure of damages to the rental value of the land occupied by the crops.

2. No proper foundation was laid for the introduction of proof to show that crops above and below were overflowed, and there is no proof to show that the destruction of the crops from the overflows complained of was inevitable, independent of the effect of the railroad. The testimony was incompetent and immaterial. Gould on Waters, § 493; 14 S.W. 611.

3. The fourth instruction requested by appellant was fully covered by its third request, which was given, and was properly refused.

4. There was no evidence on which to base the ninth instruction requested, and appellee could hardly be held to a foreknowledge of the seasons.

WOOD J. BATTLE, J., dissents.

OPINION

WOOD, J.

Appellee brought three separate suits against appellant alleging the destruction of his crops for the years 1903, 1904 and 1906, by overflow caused by the negligent construction by appellant of its roadbed over a large stream, known as Terre Noir Creek, by reason of which negligent construction appellee averred his lands were overflowed, and his crops were destroyed for each of the years for which he sued.

The appellant answered each complaint, denying all the material allegations thereof, and setting up that appellee's damage was produced not by the negligence of appellant but by natural causes, to-wit: "by heavy rainfalls, that overflowed all the lands in the vicinity of 'Terre Noir Creek.'" Appellant set up also affirmatively the three and five years' statutes of limitations. The suits were consolidated.

We have heretofore passed upon a record very similar to this between the same parties, in a suit for damages for the destruction of crops on the same land, but for a different year, produced, as was alleged, by the negligent construction of this same roadbed. That case is reported in 78 Ark. 589. The facts are stated in that case. The facts in this case are so similar on the questions of the negligence of appellant in the construction of its roadbed, and the effect thereof in causing the overflow of appellee's land, that this case must be ruled by that on the propositions of law and fact bearing upon the questions above mentioned.

We shall only consider here the questions that were not presented in St. Louis, I. M. & S. Ry. Co. v. Saunders, supra.

Appellee introduced evidence tending to show the cost of planting and cultivating his crops up to the time they were destroyed. If this were error, it was cured by instruction as follows:

"6. You are instructed that if you find from the evidence that the plaintiff is entitled to recover in this action against the defendant for the destruction of his crops in his complaints, but that the crops were too young or immature to have a cash market value at the time of their destruction, then the measure of the plaintiff's damage would be a sum of money equal to the amount of the annual rental value of the lands upon which they were growing when destroyed, during the particular year such crops were growing when destroyed, with six per cent. interest from date of such destruction, as may be shown by the evidence in this case."

There was evidence on behalf of appellee tending to prove the total destruction of his crops at a time when they were so young that they had no market value, and yet when it was too late in the season to replant, cultivate and mature crops of the kind usually produced upon appellee's farm. The evidence tended to show that appellee by reason of the overflow was deprived entirely of the usable value of his land. That being the case, the court did not err in giving the above instruction on the measure of damages. The rental or usable value of the land was the proper criterion. 1 Sedgwick on Dam., § 184; Chicago v. Huenerbein, 85 Ill. 594. See Willitts v. Chicago, Burlington & Q. R. Co., 2 L.R.A. 608. In the case of Railway Company v. Yarborough, 56 Ark. 612, the facts were...