Tyrus v. Kansas City, Ft. S. & M. R. Co.

• Citation: 86 S.W. 1074
• Parties: TYRUS v. KANSAS CITY, FT. S. & M. R. CO.
• Decision Date: 29 April 1905
• Court: Supreme Court of Tennessee

Page 1074

86 S.W. 1074 TYRUS
v.
KANSAS CITY, FT. S. & M. R. CO. Supreme Court of Tennessee. April 29, 1905.

Appeal from Circuit Court, Shelby County; J. S. Galloway, Judge.

Action by Mrs. Ann E. Tyrus against the Kansas City, Ft. Scott & Memphis Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

Edgington & Edgington, for appellant. C. H. Trimble, for appellee.

NEIL, J.

This action was brought to recover damages for an injury alleged to have been inflicted by the defendant upon a lot belonging to the plaintiff by gathering surface water in a body and sending it through a culvert upon the lot referred to, whereby it was permanently injured.

The facts shown by the record are, in substance, as follows:

The plaintiff is the owner of lot No. 7, in block 61, in Ft. Pickering Addition to Memphis. This lot fronts north on Iowa avenue, and runs back south to an alley, and has a front of 45 feet and a depth of 177½ feet. On the east lies lot No. 6, belonging to the Calhoun estate, and on the west lot No. 8, belonging to Mrs. Coffey. Lots 6 and 8 were originally higher ground than lot No. 7, and have within the last few years been made even higher by "grading up," as it is called, or filling them. Just west of block 61 lies Kansas avenue, running north and south. Along the avenue runs the defendant's line of railway. A few years ago the defendant constructed across Kansas avenue, under its track, just opposite the mouth of the alley before referred to, a stone culvert 60 feet long, and of a diameter 4 feet by 2½ feet. Owing to the lay of the land, the culvert resting at the lowest place, and the obstruction which the elevation of the roadbed thrown up by the defendant offers to the passage of water, the culvert receives the drainage of about 58 acres of land, and pours this water in one body into the alley above mentioned, and thence upon the plaintiff's lot, striking the lot at its south end, and running thence, northward, through the whole length of the lot to its northern margin, where it escapes into a drain constructed by the city across Iowa avenue, with the result that through the erosive action of the water a gully of seven feet in depth, and very wide, has been opened through the entire length of the lot, and nearly the whole surface washed off, rendering the lot practically worthless. Before the culvert was constructed, water from the surrounding lands passed over the plaintiff's lot, but more slowly, and not in such concentrated volume. It does not appear that the raising of lots 6 and 8 has had any appreciable effect in producing the injury complained of, but that the injury has been caused by the concentration of the water by means of the culvert. The culvert was properly constructed as a work of mechanical art, and, as stated, was placed at the lowest level of the land, for purposes of surface drainage.

The plaintiff offered to show the extent to which the market value of the land had been impaired by the ditch before referred to, but was not permitted to do so, the evidence having been held incompetent by the court below.

The case was originally tried before a justice of the peace of Shelby county, resulting in a judgment of $499 for the plaintiff. From this judgment an appeal was taken to the Second Circuit Court of the county, and, on the trial in that court, his honor, Judge Galloway, gave the following charge to the jury:

"Gentlemen of the jury:

"This is an action brought by the plaintiff against the defendant railroad company to recover damages on account of defendant having committed a nuisance by improperly draining surface water upon the premises of plaintiff.

"The court charges you that the proof shows that the culvert in question, under the tracks of the defendant company's railroad, which was constructed for the purpose of carrying off the surface water and natural drainage, was properly constructed for that purpose — that it was constructed at the lowest point of natural surface water drainage of the adjacent land — and that no proof to the contrary has been submitted to the jury. You are therefore instructed by the court to return your verdict for the defendant."

Page 1075

In obedience to this instruction, the jury returned a verdict in favor of the defendant, and judgment was rendered thereon by the court against the plaintiff for the costs of suit, from which judgment she has appealed and assigned errors.

1. The first point made is that the court had no power, under our practice, to give a peremptory instruction to the jury.

The question suggested by this assignment has come before the court so frequently during recent years, by the action of the circuit judges in sending up verdicts based upon peremptory instructions, that we deem it advisable to trace the history, and declare the state, of our...