Suiter v. Chi., R. I. & P. Ry. Co.

• Decision Date: 24 April 1909
• Docket Number: No. 15,426.,15,426.
• Citation: 84 Neb. 256,121 N.W. 113
• Court: Nebraska Supreme Court
• Parties: SUITER v. CHICAGO, R. I. & P. RY. CO.

84 Neb. 256

121 N.W. 113

SUITER

v.CHICAGO, R. I. & P. RY. CO.

No. 15,426.

Supreme Court of Nebraska.

April 24, 1909.

Syllabus by the Court.

An instruction must be pertinent to the evidence as well as relevant to some issue in the case, and, if the evidence does not tend to support an issue presented by the pleadings, that issue should not be submitted in the instructions to the jury.

It is not error to refuse to give an instruction if the proper legal principle therein announced is included by the court in another instruction given to the jury.

If the court properly instructs the jury that the burden is on plaintiff to make out his case, but is silent as to the burden resting on defendant to prove an affirmative defense, and plaintiff does not request further instructions on said point, he waives any error the court may have made in failing to instruct concerning the burden carried by the defense.

Where the issue joined relates to the sufficiency of openings in a railway embankment for the escape of flood waters in a creek and its valley, plaintiff's testimony concerning statements made by him to defendant's officers charged with the duty of constructing said embankment that in his opinion such openings were insufficient is irrelevant, and properly excluded.

The court in its discretion may permit jurors to take to the jury room plats and maps properly identified and admitted in evidence.

Where the court fairly submitted to the jury the issues and the evidence, the judgment will not be reversed for errors in unnecessary instructions given, if from a consideration of the pleadings and all of the evidence it is apparent that the jury was not misled, and that the verdict returned is amply supported by the evidence.

Appeal from District Court, Saline County: Hurd, Judge.

Action by Joseph Suiter against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Reese, C. J., and Fawcett, J., dissenting.

L. W. Colby, for appellant.

M. A. Low, Hazlett & Jack, and J. H. Grimm & Sons, for appellee.

ROOT, J.

Action for damages from flood waters. Defendant prevailed, and plaintiff appeals.

Plaintiff in 1867 entered as a homestead and still owns 160 acres of land in the valley of Turkey creek southeast of, and close to, the city of De Witt. Turkey creek is about 70 miles in length, flows in a general southeastern course, and joins the Big Blue river about 2 miles below plaintiff's farm. For about said distance the creek parallels the Blue, which at said point is about one mile north of Turkey creek. The Burlington Railway is between the Blue river and Turkey creek, and follows in a general way the course of said streams. In 1887 defendant in constructing its railway from Lincoln to the southwest crossed said streams and bisected plaintiff's land. At the point where the railway crosses said creek the north bank of the stream is the higher, and the land south of said water course is low and flat for over 1,000 feet. Defendant's roadbed is elevated above the bottom land and passes over the Burlington tracks. Said roadbed is about 15 feet above the north and 22 feet higher than the south bank of Turkey creek. When the railway was first constructed, in addition to a bridge over said creek, defendant built an open trestle south of said stream, but in 1898 the trestle was replaced with an embankment of earth, so that the opening through the roadbed for the waters of said creek was limited to 174 feet in width. The distance from the lower girder of the bridge to the bottom of the creek bed is 30 feet. A wide ravine or draw heads many miles northwest of De Witt, runs through said city in a course parallel with, and north of, Turkey creek, and joins said stream about a quarter of a mile east of defendant's roadbed. Said draw furnishes drainage for surface water; but for a considerable part of the year is dry. At the point where defendant's roadbed crosses the ravine it is 300 feet from bank to bank, but the walls slope gradually downward until they are close together in the bed of the draw. In defendant's first construction an open trestle was built across this ravine, but in 1900 a concrete culvert eight feet square inside measurement was placed in the bed of the ravine, and earth filled in so as to make a solid grade for defendant's roadbed. In constructing the railway across Turkey creek defendant excavated the land from the base of the grade to the exterior lines of its right of way on each side of the roadbed, thereby creating a ditch which extends on the west side of the railway from said ravine north to a graded highway which crosses the railway at right angles close to the Blue river. From the ravine the ditch extends south to the Burlington right of way, and from the south side thereof to within 20 feet of the north bank of Turkey creek. Plaintiff has a private roadway on the north side of said creek and beneath defendant's bridge, and he inserted beneath said road a drainage pipe to carry the water from the ditch aforesaid into Turkey creek. In 1902, and also in 1903, the valley of Turkey creek was flooded, plaintiff's land submerged, and his growing crops destroyed. East of the railway quantities of sand, gravel, and flood trash were cast upon and distributed over his pasture and grass land, and in places the fertile soil was washed away. Plaintiff alleges that defendant was negligent in not providing sufficient openings through its roadbed where the same crosses said ravine and Turkey creek for the passage of flood waters which were held back by said embankment and diverted through said ditch from the ravine and creek bed onto and over his land. The argument in the brief relates principally to alleged errors in the giving and refusing to give instructions.

1. Complaint is made that the court failed to instruct the jury relative to said ditch. Although this issue is presented by the pleadings, the evidence establishes without contradiction that the water attained a height greater than the top of the banks of Turkey creek and of said ditch, and that the ditch neither caused nor contributed to plaintiff's damages. The court very properly omitted that issue from the instructions. Burnet v. Cavanagh, 56 Neb. 190, 76 N. W. 578;Hamilton v. Singer Manufacturing Co., 54 Ill. 370.

2. The substance of the legal principle properly stated in instruction numbered 3, requested by defendant--i. e., that it was the duty of defendant to anticipate and provide sufficient waterways through its roadbed for the passage of the waters that might reasonably be expected to flow down the creek and draw--was included in several instructions given by the court.

3. Instruction numbered 4, requested by plaintiff and assuming to define the term “act of God,” was, as plaintiff argues, given in Fairbury Brick Co. v. Chicago, R. I. & P. R. Co., 79 Neb. 854, 113 N. W. 535, 13 L. R. A. (N. S.) 542, and not condemned in this court, but we did not hold that the court would have erred if it had not given that instruction, nor does it follow that it should have been given in the case at bar. The court fully instructed the jury that, if the flood waters which caused plaintiff damage might reasonably have been anticipated by defendant, it was charged in law with the duty of providing for their passage, and, if it failed to do so and thereby plaintiff was damaged, he could recover, and such is the law. Fairbury Brick Co. v. Chicago, R. I. & P. R. Co., supra. An abstract definition of the aforesaid term was not necessary, nor the failure to give it prejudicial error.

4. Concerning instruction numbered 3 given by the court relative to the burden of proof, plaintiff insists that, by a plea that the flood waters were caused by an act of God, defendant confessed and tried to avoid, and therefore that the burden was upon it throughout the case, and cites authorities applicable to the destruction of merchandise in the hands of a common carrier. The cases are not analogous. A common carrier, with few exceptions, is an insurer of the safe carriage of freight. If property while in the carrier's possession is damaged, a presumption of negligence arises, and the burden is upon it to bring itself within the...