St. Louis & S. F. R. Co. v. Dale

• Decision Date: 19 November 1912
• Docket Number: Case Number: 2122
• Citation: 1912 OK 735,128 P. 137,36 Okla. 114
• Parties: ST. LOUIS & S. F. R. CO. v. DALE.
• Court: Oklahoma Supreme Court

1912 OK 735

128 P. 137

36 Okla. 114

ST. LOUIS & S. F. R. CO. v. DALE.

Case Number: 2122

Supreme Court of Oklahoma

Decided: November 19, 1912

Syllabus

¶0 1. WATERS AND WATER COURSES--Railroad Construction--Overflowing Lands. If a railroad company so constructs its roadbed and ditches as to divert surface water from its usual and ordinary course, and by its embankment, ditches, or artificial channels causes such water to be conveyed to a particular place, and thereby to overflow the land of another proprietor which, before the construction of such road, ditches, or channels, did not overflow, the company will be liable to such proprietor for the injury.

2. APPEAL AND ERROR--Review--Verdict. Where a question of fact is submitted to a jury upon issues joined by the pleadings, and there is evidence reasonably tending to support the verdict, the same will not be disturbed in this court on appeal.

3. EVIDENCE--Opinion Evidence--Value of Growing Crops. Same as third paragraph of syllabus in Chicago, R. I. & P. Ry. Co. v. Johnson, 25 Okla. 760, 107 P. 662, 27 L.R.A. (N.S.) 879.

4. SAME--Photographs--Admissibility. Photographs, duly verified, are admissible in evidence as aids to the jury in arriving at an understanding of the evidence, or of the situation or condition or location of objects or premises, material and relevant to the issues.

5. SAME--Weight. The weight to be given to such photographs by the jury is not of conclusive effect as a matter of law, but depends upon the skill, accuracy, and manner in which taken, and they are to be considered under the same tests as other evidence.

6. SAME--Admissibility. The fact that the photographs were taken at a time one and two years after the dates of the respective injuries does not render them incompetent, where offered only for the purpose of showing the topography of the affected country and other permanent conditions, as distinguished from those of a transient or temporary character.

W. F. Evans, R. A. Kleinschmidt and Fred E. Suits, for plaintiff in error.

Henry S. Johnston, for defendant in error.

SHARP, C.

¶1 The three errors urged as grounds for reversal may be summarized as follows: (1) That the verdict is not supported by the testimony; (2) that there was no competent testimony as to the market value of the crops destroyed; (3) error in the admission of certain photographs introduced as evidence by plaintiff. It is insisted by defendant that whatever damages plaintiff may have sustained were due, not to the agencies complained of by plaintiff, but were attributable solely to back water from Black Bear creek, a nearby stream of considerable size, which submerged the land upon which plaintiff's crop of corn was growing, both during the years 1907 and 1908. If the damages sustained were attributable to this source, and not to the one charged, the verdict of the jury should be vacated and set aside. If, on the other hand, the injury was caused by the negligence of the defendant company in the construction and maintenance of its line of road across the farm cultivated by plaintiff, and there is testimony reasonably tending to establish this view of the controversy, then the jury reached a proper conclusion, and their verdict upon that ground should be sustained. The plaintiff testified that his place had been flooded by the water from Black Bear creek in the year 1908, but it was not shown at what season of the year, or that it caused any damage. The witness Carter testified that Black Bear creek overflowed in 1908, and the witness thought that the waters backed up under the bridge from the north to the south side of the road on plaintiff's land; that the creek was out of its banks five times that year, and that there were three general overflows in the bottom lands, and that the back waters from Black Bear creek checked the flow of the surface waters, flowing from the adjacent uplands through the ditches intended for drainage purposes; that these heavy overflows covered a portion of the quarter section of land cultivated by plaintiff. The witness Linon testified that the waters of Black Bear creek backed up over a portion, but not all, of plaintiff's land, both in 1907 and 1908; that prior to the construction of the railroad the witness had never seen Black Bear creek back up to a point south of where the railroad was constructed. The witness Mitchell testified that the waters from Black Bear creek when high backed up over a portion of plaintiff's land; that it overflowed a portion of said land in the year 1907, and all in 1908; that in the latter year the waters backed up under the railroad bridge to the lands of plaintiff south of the right of way; that during said year waters from Black Bear creek overflowed the bottom land in May, June, and either October or November. The witness Wright testified that in the year 1908 the waters from Black Bear creek backed up on the south to near defendant's right of way. The witness Ramsay testified that in the year 1907 and 1908 the waters from Black Bear creek did not back up on plaintiff's land to any extent. Plaintiff's first cause of action was for the destruction of his corn crop for the year 1907, of the alleged value of $ 440, and for the destruction of his 1908 corn crop of the alleged value of $ 528.80, and for $ 200 exemplary damages. The verdict of the jury was as follows: Damages for the year 1907, $ 241.53; for the year 1908, $ 82. A part of plaintiff's crop during both years was corn grown in the fields on the south side of defendant's line of road (being the side farthest removed from Black Bear creek), and the verdict of the jury of itself bears evidence that the jury in fixing the amount of the verdict took into consideration that a part of the injury was caused by these back waters. No objections to the court's charge to the jury are here urged as error. Among other pertinent charges the court gave the following:

"(9) You are further instructed, gentlemen of the jury, that if you believe from the evidence that the water that overflowed the plaintiff's land was back water from the Black Bear river, and that by reason of the fact that the Black Bear river overflowed its banks and caused the surface water that would naturally flow into the Black Bear river, and by reason of the water backing up from the Black Bear river it was prevented from flowing through this artificial water course by reason of the back water, in that

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