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

• Decision Date: 29 April 1905
• Citation: 86 S.W. 1074,114 Tenn. 579
• Parties: TYRUS v. KANSAS CITY, FT. S. & M. R. CO.
• Court: Tennessee Supreme Court

86 S.W. 1074

114 Tenn. 579

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 177 1/2 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 2 1/2 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." 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 law upon the subject.

Article 6, § 9, of the Constitution of 1870, reads:

"Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law."

The same provision was contained in the Constitution of 1834, and substantially the same provision in the Constitution of 1796.

The question to be determined is whether the giving of a peremptory instruction to the jury is a violation of the foregoing constitutional provision.

Before taking up our cases, however, which bear directly upon the question, it will be found useful to state some general principles established by our authorities in respect of the relations existing, under our law, between the court and the jury.

It has been held that the provision quoted, "judges shall not charge juries with respect to matters of fact," means that they shall not decide upon the credit of witnesses; they shall not state in which scale there is a preponderance; they shall not inform the jury what conclusion of fact, from the evidence heard, they ought to draw. Johnson v. State, 2 Humph. 283, 36 Am. Dec. 322. See, also, for further illustration: Ivey v. Hodges, 4 Humph. 155; Graham v. Bradley, 5 Humph. 479; Patton v. Allison, 7 Humph. 335, 336; Hughes v. State, 8 Humph. 78, 79; Farquhar v. Toney, 5 Humph. 503; Kirtland v. Montgomery, 1 Swan, 458; McGavock v. Wood, 1 Sneed, 185; Marr v. Marr, 5 Sneed, 388, 389; Ellis v. Spurgin, 1 Heisk. 76; Lyon v. Guild, 5 Heisk. 177; James v. Brooks, 6 Heisk. 158; L. & N. R. R. Co. v. Campbell, 7 Heisk. 260; Harington v. Neely, 7 Baxt. 442; Robinson v. L. & N. R. R. Co., 2 Lea, 594.

"They may state the testimony;" that is, the judge may say the witness has said so and so, or you have heard and remember the facts stated by him. If you believe all those facts to be true, the law thereon is thus and thus. Claxton v. State, 2 Humph. 181, 183. He may state the testimony at large, but is under no obligation to do so. Lannum v. Brooks, 4 Hayw. 121, 123; Harington v. Neely, 7 Baxt. 442; Hughes v. State, 8 Humph. 75, 79, par. 2.

"Declare the law" means that he is to charge the law arising upon the evidence. Crabtree v. State, 1 Lea, 267-270.

Upon the whole passage, the following occurs in Ivey v. Hodges, 4 Humph. 154, 155:

"This provision arose out of the jealousy with which our ancestors always looked upon any attempt on the part of the courts to interfere with the peculiar province of the jury--the right to determine what facts are proved in a cause--and to put a stop to the practice of summing up, as it was and is yet practiced in the courts of Great Britain, and, in all probability, in the colonies before the Revolution, and which consists in telling a jury not what was deposed to, but what was proved. This, the framers of our Constitution considered a dangerous infraction of the trial by jury, and they prohibited it by express terms. 'Judges shall not charge with respect to matters of fact;' that is, shall not state to the jury what facts are proved. To do so is error, for which a case must always be reversed. But not being disposed to withhold from the jury any proper aid which the judges may be enabled to render them in every investigation, they have provided that they may state the testimony; that is, may, for the purpose of refreshing the memory of the jury, inform them what facts the different witnesses have deposed to, leaving them to judge of the truth thereof, and to draw their deductions therefrom."

The following principles are stated in Whirley v. Whiteman:

"In trials by jury the court is to decide questions of law, and the jury questions of fact. What are called mixed questions, consisting of both law and fact, as questions in respect to the degree of care, skill, diligence, etc., required by law in particular cases, are to be submitted to the jury under proper instructions from the court as to the rules and principles of law by which they are to be governed in their determination of the case. The truth of the facts and circumstances offered in evidence in support of the allegations on the record must be determined by the jury. But it is for the court to decide whether or not those facts and circumstances, if found by the jury to be true, are sufficient in point of law to maintain the allegations in the pleadings, and this must be done in one of two modes: Either the court must inform the jury, hypothetically, whether or not the facts which the evidence tends to prove will, if established in the opinion of the jury, satisfy the allegations; or the jury must find the facts specially, and then the court will apply the law and pronounce whether or not the facts so found are sufficient to support the averments of the parties." 1 Head, 616, 617.

We shall now direct our attention to the precise question in hand.

We had prior to the last term at Nashville, no case in this state which formally approved the practice of giving...