Texas & N. O. R. Co. v. Barnhouse

• Decision Date: 18 July 1956
• Docket Number: No. 12945,12945
• Citation: 293 S.W.2d 261
• Parties: TEXAS AND NEW ORLEANS RAILROAD COMPANY, Appellant, v. J. Earl BARNHOUSE et al., Appellees.
• Court: Texas Court of Appeals

Page 261

293 S.W.2d 261

TEXAS AND NEW ORLEANS RAILROAD COMPANY, Appellant, v. J. Earl BARNHOUSE et al., Appellees.

No. 12945.

Court of Civil Appeals of Texas, San Antonio.

July 18, 1956.

Rehearing Denied Sept. 5, 1956.

Keys, Russell, Keys & Watson, Corpus Christi, for appellant.

Lieck & Lieck, San Antonio, Werner A. Gohmert, Alice, for appellees.

W. O. MURRAY, Chief Justice.

This is a suit by J. Barl Barnhouse and nineten other residents of Craig Park Addition to the City of Alice, in Jim Wells County, Texas, against the Texas and New Orleans Railroad Company, for damages allegedly sustained by reason of the failure of appellant to maintain its roadbed with the necessary culverts and sluices, as required by the natural lay of the land, for the drainage of surface water therefrom.

The trial was to a jury and, based upon the verdict of the jury, judgment was rendered in plaintiffs' favor in the total sum of $10,683.23, from which judgment Texas and New Orleans Railroad Company has prosecuted this appeal.

In 1951 there was a heavy rainfall and a resultant flood in and near the City of Alice in Jim Wells County, Texas. The Texas and New Orleans Railroad Company, hereinafter referred to as T&NO, maintains its roadbed in a northerly and southerly direction through Alice, while the Texas-Mexican Railway, hereinafter referred to as Tex-Mex, maintains its roadbed in an easterly and westerly direction through Alice, and these two roadbeds divide the city into four almost equal sections. Appellees herein live in the northwest section of the city, known ad Craig Park. Craig Park is north of the Tex-Mex and west of the T&NO tracks. The lay of the land in that area is generally from west to east. There are three main low places where water flows under the tracks of appellant in the City of Alice: On the north side is San Diego Creek, further south, but still north of the Tex-Mex tracks is a low place near Mississippi Street, and south of the Tex-Mex tracks is Lattas Creek. Craig Park is in the vicinity of Mississippi Street. Appellees' claim for damages was based upon the contention that the T&NO had not maintained a sufficient passageway for flood waters near Mississippi Street (the overflow water from San Diego Creek and water from a heavy rain on September 13, 1951, in the vicinity of Craig Park), to pass under its tracks, and thus the water was impounded and overflowed into the houses of appellees, causing damages. Appellant defended, among other things, upon the contention that the rainfall on September 13, 1951, was unprecedented and that the damage was caused by an act of God and was not due to any negligence on its part.

The jury, in answer to questions propounded, found as follows:

(1) That the T&NO failed to maintain its roadbed on or about September 13, 1951, with necessary culverts and sluices, as the natural lay of the land required, for the drainage of the surface waters therefrom, and that such negligence was a proximate cause of appellees' damages.

(2) That the flood complained of was not an unprecedented flood.

(3) That appellees' damages were not caused solely by an act of God.

(4) That the Tex-Mex failed to maintain its roadbed on or about September 13, 1951, with necessary culverts and sluices, as the natural lay of the land required, for the drainage of the surface water therefrom, but that such failure was not the sole proximate cause of appellees' damages.

(5) That the damage to the respective houses of appellees immediately after the flood of September, 1951, was then capable of being repaired and the houses restored to substantially the same condition existing immediately before September 13, 1951. The jury then found the cost of restoring each of the houses and the value of the personal property lost or destroyed and the cost of repairing personal property where it could be repaired. The total amount of these findings was $10,683.23.

Appellant's first contention is that the court erred in overruling its motion for judgment non obstante veredicto.

A motion for judgment non obstante veredicto should only be granted where there is no evidence to support the findings of the jury, and where there is any evidence of probative force to support the jury findings the motion for judgment non obstante veredicto should be overruled. Rule 301, T.R.C.P.; Hicks v. Frost, Tex.Civ.App., 195 S.W.2d 606; Texas & Pacific Ry. Co. v. Hagenloh, Tex.Civ.App., 241 S.W.2d 669, affirmed, 151 Tex. 191, 247 S.W.2d 236; Brewer v. Maryland Cas.Co., Tex.Civ.App., 245 S.W.2d 532.

A judgment non obstante veredicto should be rendered only where an instructed verdict would have been proper before the cause was submitted to the juyr. Walston v. Mabry, Tex.Civ.App., 225 S.W.2d 1014; Rinehart v. Tomerlin, Tex.Civ.App., 227 S.W.2d 876; Broussard v. Burton Const. & Shipbuilding Co., Tex.Civ.App., 265 S.W.2d 665; Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846.

So the question here presented is whether or not there is some evidence of probative force to justify the submission to the jury of the question of unprecedented flood or act of God.

The court defined the term 'unprecedented flood' as follows: 'You are instructed that by the term 'unprecedented flood' as used in this charge, is meant such an extraordinary amount of surface water upon the surface when assembled there, either from rain or overflow of a creek or creeks (or from rain and an overflow of a creek or creeks) as could not have been anticipated nor foreseen by a person of ordinary prudence from the happening of the same or similar floods prior thereto within the memory of man.' No point is brought forward criticizing this definition, so we may accept it as a proper one under the facts of this case.

There is evidence in the record of numerous floods in Alice. Floods of somewhat similar proportions were shown to have occurred in the years 1897, 1919, 1939, 1941 and 1949. Appellant and its predecessor, S. A. & A. P. Ry. Co., have mantained their roadbed through Alice many years. At one time there were several trestles between the intersections of the two railroads and San Diego Creek. The railroad company had gradually been building its track higher and higher in the vicinity of Craig Park. It had taken out three trestles and placed one culvert in their place. The culvert was sufficient to take care of the rainfall on the area drained to this culvert, but was not sufficient when overflow water was added from San Diego Creek. There was evidence that on other occasions the flood waters had gone over the railroad tracks in the vicinity of Craig Park.

In 1949 the overflow waters from San Diego Creek were much greater than in the 1951 flood. However, in Craig Park the flood was greater in 1951 than in 1949, due to the combination of a very heavy rain in the Alice area and the overflow from San Diego Creek. In other words, in 1951 the flood in Craig Park was a combination of flood waters from San Diego Creek and local heavy rains, while in 1949 there was practically no local rain and the entire flood was caused by an overflow from San Diego Creek.

The jury found that an unprecedented flood or an act of God was not the cause of the 1951 flood, and we conclude that there was evidence of probative force to support the findings of the jury. Therefore, the court...