The Aetna Mill and Elevator Company v. The Atchison

• Decision Date: 08 March 1913
• Docket Number: 17,838
• Citation: 130 P. 686,89 Kan. 38
• Court: Kansas Supreme Court
• Parties: THE AETNA MILL AND ELEVATOR COMPANY, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

130 P. 686

89 Kan. 38

THE AETNA MILL AND ELEVATOR COMPANY, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 17,838

Supreme Court of Kansas

March 8, 1913

Decided January, 1913.

Appeal from Sumner district court.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

SPECIAL FINDINGS -- Inconsistent and Erroneous -- Damages -- Extraordinary Floods. Special findings of fact returned by the jury examined and held to be inconsistent and erroneous to the prejudice of the defendant's substantial rights.

William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka, for the appellant.

Ed T. Hackney, of Wellington, for the appellee.

OPINION

BURCH, J.:

The plaintiff sued the defendant for damages resulting from the flooding of its mill on the night of June 28, 1908. The claim was that the defendant did not provide sufficient openings through its grades and beneath its tracks for the water of Hargis creek, a small stream from ten to twenty feet wide, with banks from four to six feet high, which flows from north to south through the city of Wellington. The defense was that the flood was caused by a cloud-burst, was so extraordinary and unprecedented that it ought to be designated as an act of God, and consequently that the defendant was not responsible for its ravages. The plaintiff recovered and the defendant appeals.

The flood was the most disastrous in the history of the stream. Within a remarkably short time twelve inches or more of rain fell and the valley of the stream was immediately filled with a torrent of water which carried destruction and devastation in its wake. Bridges over the creek were washed away, fences, telegraph poles and telephone poles were swept down, trees were uprooted, and buildings were engulfed before their occupants could escape. Houses were swept from their foundations and carried downstream and dashed against the railway bridge before the inmates could be rescued. Several lives were lost, many people were rendered homeless, stock was drowned, and much property was destroyed. Indeed, the flood was quite unprecedented in all its aspects unless it be with respect to the height to which the water rose. Some witnesses thought that the Jackson flood, which occurred in 1876, before the railway was built, rose higher. Others were of a different opinion, and numbers of witnesses, including several old settlers, testified that the flood of 1908 was the highest ever known. A flood known as "the cyclone flood" accompanied the tornado which visited Wellington in 1892, but the water at that time was from twenty-two inches to two feet lower than in 1908.

At the time of the flood in 1908, three of the defendant's tracks crossed Hargis creek. The northernmost one is called the mill track, the next one is called the main-line track, and the southernmost track is called the Hunnewell branch track. The Hunnewell branch track is not important to a consideration of the case. Bridges were maintained for the mill track and the main line track over Hargis creek and over "A" street, which is a street of the city of Wellington lying east of the stream and running north and south. Bridge number 254 is the main-line track bridge across "A" street. In 1887, when the railroad was first built, the length of this opening was 30 feet. It was increased to 58 feet in 1898 and to 66 feet in 1902, at which length it remained at the time of the flood. Bridge numbered 255 is the main-line track bridge across Hargis creek. The length of this opening was 30 feet in 1887. It was increased to 56 feet in 1898 or 1900 and was 56 feet long at the time of the flood. Bridge 254-A is the mill track bridge across "A" street. In 1887 it was 96 feet long. It was reduced to 94 feet in 1890 and was further reduced to 74 feet in 1903, at which length it remained at the time of the flood. Bridge number 255-A is the mill-track bridge across Hargis creek. In 1887 the length of this opening was 176 feet. In 1898 it was reduced to 167 feet and in 1903 it was further reduced to 84 feet, which was its length at the time of the flood. The "A"-street bridges afforded outlets for the water of the creek whenever it overflowed its banks. The creek frequently overflowed at times of heavy rain, but the bridges described took care of all flood waters previous to 1908, including the cyclone flood of 1892. At that time the total length of all the openings was 330 feet. In 1908 the total length was 280 feet, a net reduction of 50 feet. The plaintiff, of course, made much of this reduction, while the defendant maintained that it was the result of prudent engineering in the light of all the factors of the drainage problem.

The plaintiff's mill was situated about 400 feet east and about 800 feet north of the "A"-street bridge. One of the plaintiff's chief witnesses testified that on the night of the flood the creek was 1000 feet wide and from 12 to 13 feet deep from the bottom of the channel, at a point 3000 feet north of the railway tracks. The fall of the stream was about twelve and one-half feet to the one-half mile. If the character of this flood was such that the defendant could not reasonably anticipate it, or if, notwithstanding the inadequacy of the defendant's waterways, the flood was of such a character that the plaintiff would nevertheless have suffered, the defendant was not responsible in damages for what occurred.

In order to develop the facts showing the peculiar character of the flood and the relation of the defendant's bridges to it, the jury were requested to answer a large number of special questions, and the manner in which they dealt with these questions is important. Certain of them, with the answers returned, follow:

"Question 5-A. What was the area of the opening of defendant's bridge 255-A up to elevation 86.0 at time of flood in question? Answer. Don't know.

"Question 6-A. Was the area of the opening of bridge 255-A up to elevation 86.0 two hundred and twenty square feet? Answer. Approximately, yes.

"Question 14-A. Was the storm and flood of June 28, 1908, what is known as an act of God? Answer. No.

"Question 15-A. Was the storm and flood of 1908 in question what is commonly known as a cloud-burst or water-spout? Answer. No.

"Question 16-A. Did the flood down Hargis creek June 28, 1908, come in waves or walls of water several feet high, short intervals apart? Answer. We think not.

"Question 17-A. Did the bridges and waterways in defendant's railroad at the places in question prove sufficient for all waters that had come down Hargis creek prior to the flood of June 28, 1908. Answer. They had been sufficient prior to change of bridge and building fill for new tracks.

"Question 20-A. Was there from twelve to fifteen inches of water that fell along Hargis creek on the night of June 28, 1908? Answer. The exact amount of inches unproved.

"Question 21-A. If you answer 'No' to the last question, then state what was the greatest amount of water that fell, in the region of Hargis creek on the night of June 28, 1908? Give it in inches. Answer. .

"Question 19. Do you find, as testified to by several, that ten to twelve inches of water fell in the region of Hargis creek north of Wellington, on the night of June 28, 1908? Answer. Yes.

"Question 21. Were there dead bodies of different animals taken from a flood that came down Hargis creek on the night of June 28, 1908? Answer. No evidence.

"Question 22. What was the greatest number of inches of rain fall that occurred at any point within 8 miles of Wellington on the night of June 28, 1908? Answer. Not proven.

"Question 30. Was there about 12 inches of rain fell at Hargis creek on the night of June 28, 1908? Answer. Yes.

"Question 32. Did flood waters fall on Hargis creek and come down on the city of Wellington on the night of June 28, 1908, in waves 1 to 3 ft. high, so suddenly that much property and a number of lives were lost in and near Wellington before relief or assistance could be given? Answer. Yes.

"Question 33. Were there trees of considerable size washed loose and carried down the flood in Hargis creek on the night of June 28, 1908? Answer. No evidence.

"Question 36. How often, if ever, before June 28, 1908, did so large a volume of water flow down Hargis creek into the city of Wellington as the volume that came down on the evening and night of June 28, 1908? Answer. Once.

"Question 37. Give the dates that a volume of water came down Hargis creek into Wellington as large or larger than the volume that came down on the evening or night of June 28, 1908? Answer. The Jackson Flood in 1876 or '77.

"Question 39. Was the water in Hargis creek valley as it passed over the land of C. G. Epperson, who testified as a witness in this case, higher during the storm of 1908 than it was at the time of the...