Texas & P. Ry. Co. v. Cochrane

• Decision Date: 24 May 1902
• Citation: 69 S.W. 984
• Parties: TEXAS & P. RY. CO. v. COCHRANE et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

69 S.W. 984

TEXAS & P. RY. CO. v. COCHRANE et al.¹

Court of Civil Appeals of Texas.

May 24, 1902.

Appeal from district court, Denton county; D. E. Barrett, Judge.

Action by E. W. Cochrane and others against the Texas & Pacific Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

T. J. Freeman and Head & Dillard, for appellant. R. H. Bates and Tarlton & Ayres, for appellees.

HUNTER, J.

On the trial of this cause, which was brought to recover damages from the appellant company, occasioned by an overflow of his lands in April, 1900, the evidence tended to establish that the appellant built a stone dam 4 feet high across Big Elm creek, in Denton county, 2,000 feet below where its track crossed said creek, and about 1,500 feet below appellee's farm or field; that the banks of the creek above the dam were from 15 to 30 feet higher than the dam; the width of the channel of the creek is not given, nor the width of the bottoms on either side of the creek; that D. S. Watkins, who was a civil engineer, and had been for 36 years, made, and had made under his direction and superintendence, a topographical survey of the premises over which the road ran across the bottoms and creek aforesaid, and that he had had great experience in building dams, culverts, and sluices and railroads. "The defendant then offered to prove that the said D. S. Watkins, in his capacity as civil engineer, was familiar with the effects of water dams, and the results they would produce in causing overflows, and that a dam constructed of the height of this one, within banks such as these, and that this particular dam in this particular place, could not cause any overflow on plaintiff's land, or have any effect in producing an overflow thereon." This evidence was objected to by the plaintiff "because it was not a subject upon which expert testimony could be given," and this objection was sustained, and the witness not allowed to answer. We think the court erred in excluding this evidence upon the objection made. The science of hydraulics is very intricate and complicated, and the answer to the question is one particularly, though not exclusively, within the domain of an expert in such matters, and must of necessity depend upon many other facts which seem not to have been given in this case; but this would readily be understood and considered by an hydraulic engineer, who would take them into consideration in giving his opinion. Whether the additional...