Taylor v. Baltimore & O.R. Co.

• Decision Date: 13 September 1889
• Citation: 10 S.E. 29,33 W.Va. 39
• Parties: TAYLOR v. BALTIMORE & O. R. Co.
• Court: West Virginia Supreme Court

10 S.E. 29

33 W.Va. 39

TAYLOR v. BALTIMORE & O. R. Co.

Supreme Court of Appeals of West Virginia.

September 13, 1889

Submitted June 13, 1889.

Syllabus by the Court.

1. Though a railroad company has under its charter the right to bridge a stream, it must do so in a proper, skillful manner leav ing ample way for the passage of the water so as to save riparian owners from overflow; and if it fail so to construct its bridge, and by reason of its bridge structure narrowing the natural channel, backwater is caused overflowing the premises of a riparian owner and causing him damage, the company is liable.

2. Where a person or corporation is vested with authority by the legislature to do an act, it will be protected from all responsibility, and liable to no suit at law or equity provided what it is authorized to do is done carefully and skillfully, though without such authority it would have been a nuisance, but, if done carelessly and unskillfully, and damages result from such carelessness and want of skill, it will be responsible.

3. Where illegal evidence is admitted, against objection of a party, it will be presumed that it prejudiced such party, and if it may have prejudiced him, though it be doubtful whether it did or not, it will be cause for reversal of the judgment; but if it clearly appear that it could not have changed the result,--that, if it had been excluded, the same result would have followed,--it will not be cause for reversing the judgment.

4. If in such case there is a demurrer to evidence, and an alternative verdict, and, after disregarding upon such demurrer such illegal evidence, and treating the balance of the evidence as is proper under the rules applicable to demurrers to evidence, there is plainly enough evidence to sustain a judgment for the demurree, the admission of such illegal evidence will not reverse; otherwise it will.

5. Opinions merely of a witness are not generally admissible evidence. Point 2 of syllabus in Hall v. Lyons, 29 W.Va. 410, 1 S.E. 582, approved.

Error to circuit court, Ritchie county.

J. A. Hutchinson, for plaintiff in error

Okey Johnson, for defendant in error.

BRANNON J.

In August, 1886, James Taylor brought an action of trespass on the case in the circuit court of Ritchie county against the Baltimore & Ohio Railroad Company, to recover damages caused by the overflow of his premises during a freshet in Hughes river, which overflow was caused by a bridge over said river on the Parkersburg branch of the Baltimore & Ohio Railroad, as he alleged. The defendant demurred to the declaration, and its demurrer was overruled. It demurred to plaintiff's evidence, and the demurrer was overruled. It moved the court to exclude the plaintiff's evidence, and its motion was overruled. A verdict was rendered by a jury in favor of plaintiff for $400 damages, subject to the opinion of the court on the demurrer to the evidence. The court overruled a motion for a new trial, and rendered judgment for plaintiff for said damages and the costs. The company obtained a writ of error and supersedeas.

Counsel for appellant raises a preliminary question by his contention that, as no demurrer to the evidence is found in the record, this court must at once reverse the judgment, set aside the verdict, and remand for a new trial, and go no further. The record states that, "the plaintiff and defendant having closed their evidence, the defendant tendered its demurrer to the evidence of the plaintiff, and the plaintiff joined in said demurrer, which is signed and made part of the record, and thereupon the jury was directed to find their verdict in the alternative, subject to said demurrer." A verdict subject to such demurrer was returned. On another day the record states that, "the court, having considered the demurrer to the evidence, taken by the defendant and joined in by the plaintiff, and having, maturely considered the matters of law arising on the said demurrer to the evidence, is of opinion that the said evidence is sufficient in law for the plaintiff to have and maintain his action," and proceeded to render judgment. This same order shows that the defendant excepted to certain opinions of the court, and tendered two bills of exceptions, Nos. 1 and 2, which were made part of the record. No. 1 is for admission of evidence, to which defendant objected; No. 2 sets out in full the evidence of the plaintiff's witnesses as given, and shows that the defendant moved the court to exclude it from the jury, that the court refused to exclude it, and that to such ruling the defendant excepted. This exception certifies that the evidence in it contained was all the evidence given by the plaintiff in chief. It gives the evidence on direct and cross-examination. No formal demurrer to the evidence appears in the record, and the clerk certifies that the demurrer to the evidence "is not now on file in the papers of this cause."

It is not necessary in this case to say what should be the action of this court where a case is decided only upon a demurrer to the evidence, and that demurrer is lost, and not produced in the appellate court, as it may be decided on other grounds. The record distinctly states that there was a demurrer to plaintiff's evidence, and that it was passed on by the court. If it were before us, what more would it show? It would recite the plaintiff's evidence. That evidence is found in full in bill of exceptions No. 2, and this want is supplied; so that all the purposes which such formal demurrer could answer are answered by the said orders and that bill of exceptions. We are authorized to look into that bill of exceptions for this purpose, as it states that it contains all the evidence given by the plaintiff. Though one bill of exceptions cannot be inspected to aid another, unless that other refers to it, yet, where a bill sets out all the evidence, it may be looked to in considering a question raised in another exception. Hall v. Hall, 12 W.Va. 2. The record pointedly says that the defendant demurred to plaintiff's evidence; and that evidence is here in the record, and the court certifies it to be all the plaintiff's evidence. In Lee v. Bridge Co., 18 W.Va. 299, the demurrer had only the plaintiff's evidence, and the court held that "upon a demurrer to evidence, where the evidence is wholly that introduced by the plaintiff, the demurrant admits not only the truth of the facts proved, but also all that may be fairly inferred from those facts." Under these circumstances, there can be no good and solid reason for overturning the judgment on this ground. The demurrant can have the benefit of his demurrer in the mode he took. And if no error affirmatively appear there can be no reversal, even if the demurrer, if here, should present a different appearance, and show error; for error must affirmatively appear. 4 Minor, Inst. 870, 871; Richardson v. Donehoo, 16 W.Va. 685. No defect in the declaration is pointed out, and I discover none, and therefore there is no error in overruling the demurrer to the declaration. Did the court err in overruling the demurrer to evidence and the motion to exclude the evidence? Upon such motion to exclude and demurrer certain well-settled principles apply. In the language of the opinion of this court prepared by Judge GREEN in Franklin v. Geho, 30 W.Va. 34, 3 S.E. 168: "As a demurrer to evidence, or a motion to exclude from the jury the plaintiff's evidence, withdraws from the jury--the proper triers of facts--the consideration of the evidence by which they are to be ascertained, the party whose evidence is thus withdrawn from its proper forum is entitled to have it most benignly interpreted by the substituted court. See Schwarzbach v. Union, 25 W.Va. 642; Miller v. Insurance Co., 8 W.Va. 515. In such cases the law is, as stated by Judge STANARD, in Ware v. Stephenson, 10 Leigh, 164: 'In determining the facts inferable from the evidence, inferences most favorable to the demurree will me made in cases in which there is grave doubt which of two or more inferences shall be deduced.' And, again, he says: 'When the question is whether or not a fact ought to be taken as established by the evidence either directly or inferentially in favor of the demurree, I do not know a juster test than would be furnished by the inquiry: Would the court set aside the verdict had the jury on the evidence found the fact? If the verdict so finding the fact would not be set aside, it ought to be considered as established by the evidence demurred to."' This doctrine is laid down also in Fowler v. Railroad Co., 18 W.Va. 579, and Heard v. Railroad Co., 26 W.Va. 455. And in the latter case it is held that the rule for determining what facts shall be considered as established in cases of demurrer to evidence, when all of it is adduced by the demurree, is, the court shall regard the demurrant as necessarily admitting by his demurrer not only the credit and truth of all the evidence, but all inferences of fact that may be fairly deduced from it, and that most favorably to demurree; and, unless there is a decided preponderance of probability or reason against the inference that might be made in favor of the demurree, such inference ought to be made in his favor. 2 Tuck. Bl. Comm. 297.

The evidence of the plaintiff is voluminous. It tends to show that on 13th May, 1886, the plaintiff owned a tract of land on North fork of Hughes river, on which were a water grist and saw mill and dwelling house, and that a freshet overflowed his land, inundated his mills and dwelling house and well of water, sanded his meadow, and destroyed his garden, and inflicted severe injury upon him; that about a mile below his dwelling and mills, near his lower line, was a railroad bridge over said river, called the "Lavelle...