St. Louis- San Francisco Railway Co. v. Spradley

• Decision Date: 13 November 1939
• Docket Number: 4-5621
• Citation: 133 S.W.2d 5,199 Ark. 174
• Parties: ST. LOUIS- SAN FRANCISCO RAILWAY COMPANY v. SPRADLEY
• Court: Arkansas Supreme Court

133 S.W.2d 5

199 Ark. 174

ST. LOUIS- SAN FRANCISCO RAILWAY COMPANY v. SPRADLEY

4-5621

Supreme Court of Arkansas

November 13, 1939

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge; reversed and dismissed in part; affirmed in part if remittitur entered.

Judgment reversed and cause dismissed. Otherwise judgment reversed and cause remanded.

J W. Jamison and Warner & Warner, for appellant.

Partain & Agee, for appellee.

OPINION

GRIFFIN SMITH, C. J.

Appellee had, for five years, occupied a building in the city of Van Buren, dimensions of which were 26 by 70 feet. There were two partitions. In October, 1937, appellee purchased the property. He operated a liquor store, beauty shop, and barber shop. Complaint was filed June 15, 1938, with trial December 6 of the same year.

Appellant's railway was constructed in 1882. Between the railway and a street crossing there are buildings other than appellee's. Averment of the complaint is that appellee's premises were overflowed because of the negligence of appellants; that at such flood times appellee's stock of whisky was worth $ 4,000; that water came into the building to a depth of three or four inches, and that on two occasions 150 cases of whisky were stored on the floor, with resulting water damage. The first overflow affecting the whisky occurred in 1936. Later, similar losses were occasioned, the contention being that in each instance 100 cases were damaged, and that in addition, repairs to the building were necessitated. Appellee's testimony was that $ 60 was spent repairing the walls, and that it cost $ 300 to repaper. New linoleum was put down, but another flood washed cinders under it.

Appellee insists he had a loss of $ 5 the case on the damaged whisky; that the market price before flooding occurred was $ 24, and that it was $ 19 thereafter.

Specifically, damages to the building were: Plaster came off the walls from a point touching the floor and extending up three or four feet. Before inundation the building was worth $ 1,500; thereafter (and presumably prior to the time repairs were made), its market value was $ 1,000.

On the question of damages to the whisky, appellee testified: "I carry different kinds of whisky that cost me from $ 15 to $ 18, and I get $ 24 a case for it." He admitted the revenue stamps were not destroyed; that damage was to the containers and labels, and that the whisky was sold to people who, in respect of the labels and cartons, "didn't care."

A contractor of Van Buren, who examined the Spradley building in June (1938), testified as to cost of entirely replacing the floor. He said: "The entire damaged portion pointed out to me would cost $ 380." Depreciation was 70 per cent., leaving the net damage $ 117. Papering, plastering, etc., when added to the flooring costs, would bring the total to $ 528. If depreciation of 70 per cent. were allowed, the actual damage was $ 256.

Appellee contends flooding was caused by the railroad company's act in constructing a "stringer" about eight inches thick and four inches wide. There were two of these timbers ". . . and that wall is about 60 or 70 feet long." This structure, he said, was "right on the railroad track--as near the track as it can be and still be in the clear. It looks like a sill from a box car. It is within three or four feet of the end of the ties, between my building and the track, and the top is level with the base of the track. Some addition was made to the wall in June of this year--an addition to what you call the south end of the wall. There was a little culvert built under the track, about three inches deep. They had to build that to carry the water under the track. It is just level with the ties. That little culvert forces the water in under there, but that wouldn't take care of the water. You can see the high water mark on the wall and it is four inches higher than that."

In the language of the complaint, the act of negligence alleged is that appellants ". . . erected and maintained a certain wall and abutment immediately north of and adjacent to plaintiff's said property . . ."

Appellants have pleaded the three-year statute of limitation. It is shown that the structure of which complaint is made was built March 18 or 19, 1935; and, the complaint not having been filed until June 15, 1938, approximately three years and three months intervened.

It is uncontradicted that the track and embankment upon which it rests have not been changed materially since 1882, except in the matter of laying the stringer. Immediately north is Log Town Hill. Appellee's building is on the right-of-way line--according to the testimony of appellants' engineer Collett, 25 feet from the track, one corner being slightly nearer the track than is the other. The right-of-way touches Spradley's property at the northeast corner. General slope of the ground is to the south and west. Fayetteville street slopes south, with a six per cent. grade. It is paved with concrete and has concrete curbs. During rainy periods water comes down the gutter in Fayetteville street and at times collects at a catch basin on the north side of Spencer track. Elevation of the land north of Fayetteville street is greater than that of the railway. Natural drainage from that area is to the south. The amount of water collected is occasionally too great for the catch basin's capacity. During unusual rains water comes down Fayetteville street very rapidly, overflows at the catch basin, then goes over the tracks on to Main street. The rail flanges hold about three inches of the flood. There is a slope toward Spradley's building. The buildings between Spradley's property and Fayetteville street are higher, and drainage is gradually in appellee's direction.

After describing construction of the stringer, the witness Collett said: "At the west end a drain is under the ties to take care of water collected on the north side of the main track, and it empties into Knox street on the north side. The timber (stringer) is about even with the northeast corner of Spradley's building . . . Spradley has a down spout on his building and retaining wall paved with brick 14 inches from the back end of his building. . . . Spradley's drain is a 15-inch gutter, 14 inches wide and 18 inches deep, with 5-inch drain from it. Water from down spout of his building flows in the gutter, which is 14 x 18, supposed to be connected with the sewer, but the spout is broken in two. The pipe starts down, then there is a space where there is no pipe, then it starts again. Water flows down in this 14-inch gutter . . . the gutter at the back of his building was filled with debris. The drain at the bottom of the gutter had been stopped up.

"The drain under the track could not be higher than the ties, and a board was put there while water was running to force the water through the tracks over on the other side. . . . The steep grade extends back 2,500 feet from the track. The area of ground drained naturally to this stringer back of the building is 3,406 square feet. The opening through the drain at the west end of the stringer under the track is 9 x 10 inches. . . . It carries 90 square inches, and will take care of an area of two times the [amount of water discharged against the stringer]."

From this testimony it will be seen that appellee's contention is that construction of the stringer system in 1935 had the effect of interrupting normal flow of the water, with the result that a part of the impounded flowage was liberated in an unnatural manner, accelerating the normal escapement, with consequent damages.

The law in respect of the statute of limitations is stated in Chicago, Rock Island & Pacific Railway Co. v Humphreys, 107...