Stafos v. Missouri Pacific Railroad Company, 7818

• Decision Date: 17 October 1966
• Docket Number: No. 7818,7829.,7818
• Citation: 367 F.2d 314
• Parties: James STAFOS, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellee. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant, v. James STAFOS, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

367 F.2d 314 (1966)

James STAFOS, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellee.

MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant, v. James STAFOS, Appellee.

Nos. 7818, 7829.

United States Court of Appeals Tenth Circuit.

October 17, 1966.

Robert H. Bingham, Kansas City, Kan. (Lee E. Weeks, Leonard O. Thomas, J. D. Lysaught, Wash H. Brown and Donald H. Corson, Jr., Kansas City, Kan., with him on brief), for James Stafos.

Ralph M. Hope, Wichita, Kan. (W. F. Lilleston, George C. Spradling, Henry V. Gott, George Stallwitz, Ronald M. Gott, Glenn D. Young, Jr., Edward H. Graham, Wichita, Kan., Willard L. Phillips, Patrick B. McAnany, Thomas M. VanCleave and James J. Lysaught, Kansas City, Kan., with him on brief), for Missouri Pacific Railroad Co.

Before MURRAH, Chief Judge, PICKETT and HILL, Circuit Judges.

MURRAH, Chief Judge.

In this diversity suit the railroad company appeals from a judgment of the Kansas Court in favor of the appellee-farmer for crop damages in 1961-62 due to the overflow of impounded waters proximately caused by the negligent maintenance of the railroad's bridge, ditch and roadbed. The cross-appeal complains of the amount of the award for compensatory damages and the failure to award any punitive damages.

The appellee's leased land lies between the railroad right-of-way on the south and the Missouri River on the north. A leveed ditch commencing near the east corner of the appellee's land runs in an easterly direction parallel to the railroad tracks past other farm lands not involved here and ultimately to the Missouri River. This leveed ditch was constructed in 1938 to receive runoff from a watershed across the railroad tracks to the south. The drainage from the rather hilly watershed (consisting of approximately 200 acres) empties into a ravine running northerly toward the railroad passing under a bridge or culvert on a state highway, thence 500 feet to another bridge on a county road, thence approximately 25 feet to the railroad bridge, thence through the railroad ditch to a point where it turns abruptly into the leveed ditch near the corner of appellee's leased land. From there the water is channeled through the leveed ditch eastward to the river. The major portion of the leased land, lying northwest of the ravine and parallel to the railroad, is thus unprotected by any drainage ditch.

The specific claim sustained by the trial court is that the railroad negligently permitted silt and debris to collect in its bridge and ditch forming a dam causing flood waters to leave the ravine and become impounded behind the railroad bed west of the ravine and leveed ditch; that the overflow was of such force and velocity as to permeate the roadbed causing it to "wash out" and flood a portion of appellee's leased premises and the crops growing thereon.

The trial court proceeded on the perfectly valid premise that the railroad was under a legal duty to construct and maintain a suitable bridge, appurtenant ditch and roadbed to accommodate the foreseeable runoff from the watershed tributary to the ravine. See Niccum v. Atchison, T. & S. F. Ry. Co., 147 Kan. 645, 78 P.2d 1; Riddle v. Chicago, R. I. & P. Railway Co., 88 Kan. 248, 128 P. 195; Broadway Manufacturing Company v. Leavenworth Terminal Ry. & Bridge Co. et al. 81 Kan. 616, 106 P. 1034, 28 L.R.A., N.S., 156.

The railroad's defense was that the maintenance of its bridge, ditch and roadbed was not the proximate cause of the overflow and resultant damage; that in the first place the rainfall for the crop years in question was extraordinarily heavy in this vicinity — far greater than the 30 year average — and the flooding was, therefore, unforeseeable; that in any event the flooding was caused by the obstructions on the upstream side of the county road bridge approximately 25 feet south of the railroad bridge and by a natural mound on the west and a manmade dike on the east side of the ravine which diverted the water over the west bank of the ravine where it became impounded behind the roadbed without reaching the railroad bridge. In short the defendant's theory is that the flood was extraordinary and unforeseeable and that the flood waters would have overflowed the ravine to the north and west and become impounded as they did even if the railroad bridge had not existed and the ditch had been a clear channel at that point. The railroad also contends that the impoundment and overflow was caused in part at least by the failure of the lessee-appellee to maintain his portion of the leveed ditch in proper condition to channel the water which passed under the railroad bridge into the ditch.

The court found and concluded that although the rainfall during the years in question was greater than any preceding 30 year period, it was nevertheless within the range of foreseeability. The court specifically found that as a result of the clogged and silted condition of the railroad's bridge and ditch, runoff from heavy rainfall on July 6, September 13 and October 12, 1961, and October 12, 1962, backed up in its natural water course until it overflowed the west banks south of the county road bridge in a northwesterly direction and a substantial portion overflowed south of the railroad bridge in a westerly direction, ultimately pounding against the railroad tracks and roadbed for a distance of several hundred feet west of the railroad bridge; that the flood waters rose to such a height as to cause the water to overflow the railroad tracks and permeate the gravel roadbed washing it out in several places thereby precipitating the impounded waters onto appellee's lease land with such force and velocity as to inundate and flood a portion of it and the crops thereon; that at the time of the three floods in 1961 the county roadbridge was partially obstructed by silt and debris, but after the flood of October 12, 1961, the county cleaned it out; that although thereafter and prior to the flood of October 12, 1962, the opening was again partially obstructed by silt and debris, it "continued to have a considerable opening", and after the flood of October 12, the bridge had an opening on its upstream side of 19.4 square feet and on its downstream side of 29.3 square feet. The court further found that after the first flood in 1961, the railroad was notified of the damages claimed to have been suffered by appellee by reason of such flooding but refused on written request to remove the obstructions or to permit appellee to do so.

The court found that after each of the floodings the appellant replaced the washed out portions of its roadbed with gravel or chat and that each flooding washed out the gravel and chat in approximately the same places; that during all this time the appellant knew that the gravel was not impervious to the impounded waters caused by the silted condition of the railroad ditch and the obstructed bridge.

On these findings the court concluded that the railroad was guilty of negligence proximately causing appellee's damages by failure to keep and maintain its bridge, ditch and roadbed so as to provide for the free flow of water down, through and under its bridge into a properly constructed channel with sufficient capacity to carry the waters reasonably to be expected to flow therein.

The railroad challenges these critical findings and conclusions as wholly unsupported by the record evidence. The contention is that they are contrary to undisputed expert testimony to the effect that the condition of its bridge and ditch in no way contributed to any of the floodings complained of. The railroad did introduce credible expert proof that if its bridge had been non-existent and the ravine at that point a clear channel, the waters that fell on the watershed would have overflowed the ravine south of the county road bridge and become impounded as they did west of the railroad bridge for the reasons (1) that the ravine south of the county road bridge was incapable of delivering to the bridge the volume of water which fell on the watershed on the dates in question; (2) that the dike on the east side of the ravine effectively prevented excess water in the ravine from flowing eastward, thereby forcing all or most of the overflow toward the west into the area where the damage occurred; (3) that the opening in the county road bridge was incapable of delivering to the vicinity of the railroad bridge the volume of water flowing into the ravine on the critical dates; (4) that the ravine or ditch south of the railroad bridge had been altered "* * * by manmade appurtenances so as to affect its natural operating characteristics * * *"; and (5) that the portion of the leveed ditch parallel to the leased premises was incapable of delivering the water without flooding the adjacent areas.

There was no scientific proof to the contrary, and it is true, as we have said, that controlling, positive, uncontradicted and unimpeached evidence may not be disregarded even though adduced from interested witnesses, and in such circumstances the trier of the fact is bound to honor it. See Potucek v. Cordeleria Lourdes, 10 Cir., 310 F.2d 527; Security-First National Bank of Los Angeles v. Lutz, 9 Cir., 322 F.2d 348. If, indeed, the evidence — expert or non-expert — is all one way, there is no room for a contrary finding. But, expert evidence does not foreclose lay testimony concerning the same matter which is within the knowledge and comprehension of the lay witness. A lay witness may tell all he knows about a matter in issue even though it may tend to impugn the conclusions of the expert. See Padgett v. Buxton-Smith Mercantile Company, 10 Cir., 262 F.2d 39, 41; Boston Insurance Company v. Read, 10 Cir., 166 F.2d 551, 553, 2 A.L.R.2d 1155; Cf. Potucek v. Cordeleria Lourdes, supra; and see generally 20 Am.Jur., Evidence, § 1208, p. 1061.

No one seems to seriously question the fact that the water which fell on the watershed on the critical dates flowed...