Estes v. Chi., B. & Q. R. Co.

• Decision Date: 12 April 1913
• Citation: 159 Iowa 666,141 N.W. 49
• Court: Iowa Supreme Court
• Parties: ESTES v. CHICAGO, B. & Q. R. CO. ET AL.

159 Iowa 666

141 N.W. 49

ESTES

v.CHICAGO, B. & Q. R. CO. ET AL.

Supreme Court of Iowa.

April 12, 1913.

Appeal from District Court, Mills County; O. D. Wheeler, Judge.

Action at law to recover damages for the negligent construction and maintenance of a railway bridge, causing the water in a drainage district to overflow the levees of the ditch and to injure and destroy plaintiff's property. Defendants' answer was a general denial, and it also pleaded that the overflow was due to an unprecedented flood; that the ditch was negligently and unskillfully constructed; that it had filled up with dirt and sediment; and that the authorities, instead of cleaning out the ditch, increased the height of the levees. It also pleaded a prescriptive right to use and maintain the bridge, as it was before the storm, and other defenses, which need not be noticed at this time. Upon the issues joined, the case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $3,133.32, and defendants appeal. Affirmed.H. J. Nelson, of St. Joseph, Mo., W. S. Lewis, of Glenwood, and Tinley & Mitchell, of Council Bluffs, for appellants.

John Y. Stone, C. E. Dean, and Genung & Genung, all of Glenwood, for appellee.

DEEMER, J.

The damages, which plaintiff seeks to recover, were due to the same storm as caused the injuries complained of in De Lashmutt v. Railroad Co., 148 Iowa, 556, 126 N. W. 359, and the negligence charged is the same as was the gravamen of the charge in that case. De Lashmutt's land was on the west of the drainage ditch referred to in the opinion cited, while plaintiff's land is east of the ditch. Aside from the question of proximate cause, the case referred to settles the question as to the sufficiency of the testimony to take the case to the jury upon the issue of defendant's negligence; and as to its duty and liability in the premises and although it is argued, on this appeal, that there was not sufficient evidence of defendant's negligence to take the case to a jury, and that defendant is not liable for the overflow of the ditch, and that the flood was unprecedented in character, these matters must be considered as foreclosed by the opinion in the De Lashmutt Case. It is further argued that the overflow of the creek and the damage to plaintiff's crops is not shown to have been the proximate cause of plaintiff's injury. As in the De Lashmutt Case, we think this was a fair question for the jury; the testimony being sufficient to carry the issue to that body. We shall not set out the testimony, nor refer, at length, to the facts, for enough of these are set out in the former opinion to indicate the nature of the controversy.

I. Complaint is made of the overruling of a challenge to a juror for cause. The record does not show whether this juror remained upon the panel or whether defendants exhausted all their peremptory challenges; and, while the challenge might well have been sustained, and doubtless the juror should have been excused, yet no such a showing is made as would justify a reversal. Harris v. Moore, 134 Iowa, 704, 112 N. W. 163;Haggard v. Petterson, 107 Iowa, 417, 78 N. W. 53.

[1] II. Plaintiff joined with his own claim, those of many others who claimed to have suffered from the same flood, and alleged that he was an assignee of these claims. The petition did not allege whether these assignments were in writing or in parol; but the proof was confined to oral assignments. As both assignors and assignee testified to such assignments, and as such assignments may be in parol, there was no error here. Seymour v. Aultman, 109 Iowa, 297, 80 N. W. 401.

[2] III. A witness was permitted, over defendants' objections, to answer this question, as follows: “Q. Now, you may tell the jury, if you know, whether it was the custom of the railroad men to go down there to that bridge when a freshet or storm had occurred? A. I most generally found them there when there was a storm.” We see no error here. Such testimony was admissible to show not only defendants' knowledge of the condition of the bridge, but also to indicate that the bridge itself needed attention after a freshet or storm.

On re-examination of the same witness, who had testified to débris, dirt, and sediment on or near plaintiff's land, he was asked the following question, to which he made answer as shown: “Q. Mr. Mitchell has asked you with reference to the bar or the drift or the deposit about the bend or below the bend in front of Mr. Estes'; was that bar thrown up on the 14th at the time the levee broke, or was that sediment that was thrown in there because of dead water after the levee broke? A. It was caused from a rush of water passing past the break after the break occurred, and throwed that sediment in there; of course, there was not current enough to carry it away.” There was no prejudicial error here. The witness showed his familiarity with the ditch and the adjoining lands; was on the ground during and after the flood and had such knowledge of the situation and of the action of the water that, although his answer was in the nature of a conclusion, it was such an opinion as was permissible because of his inability to reproduce the scene as it appeared to him, so that a jury would understand it. Moreover, he showed such knowledge of the situation as justified his giving an opinion, although he was not, technically, an expert. Noe v. C., B. & Q. R., 76 Iowa, 360, 41 N. W. 42;Koccis v. State, 56...