Wine v. Northern P. Ry. Co.

• Decision Date: 01 November 1913
• Citation: 136 P. 387,48 Mont. 200
• Parties: WINE v. NORTHERN PAC. RY. CO.
• Court: Montana Supreme Court

136 P. 387

48 Mont. 200

WINE v. NORTHERN PAC. RY. CO.

Supreme Court of Montana

November 1, 1913

Appeal from District Court, Broadwater County; W. R. C. Stewart Judge.

Action by Joseph R. Wine against the Northern Pacific Railway Company. From an adverse judgment and order, defendant appeals. Affirmed.

Gunn & Rasch, of Helena, for appellant.

J. R Wine, Jr., of Helena, for respondent.

BRANTLY C.J.

Action for damages alleged to have been caused to the lands of plaintiff by the wrongful act of the defendant. The plaintiff had verdict and judgment. The defendant has appealed from the judgment and an order denying its motion for a new trial.

The plaintiff is the owner of lands lying on both sides of the Missouri river, a short distance below the point where the defendant's line of railway crosses it, near Townsend, in Broadwater county. The general course taken by the river in this locality is from the southwest to the northeast. The course of the railway is from the southeast toward the northwest, crossing the river nearly at right angles. For the distance of more than a mile from the river to the southeast the lands on either side of the railway are lowlands elevated only a few feet above the stream at its ordinary stage. Beyond the river to the northeast the condition is the same. Plaintiff's residence, with appurtenant outbuildings, orchard, garden, and meadow, is situated on a portion of his lands lying on the southeast bank. The main body of his lands lies along the opposite bank. The line of the railway approaches the bridge from the southeast by means of an embankment, which increases in height, from a few inches near Townsend, to about eight feet where it reaches the bridge. This embankment was constructed many years ago when the railway was built. It has no substantial openings to permit the escape of water which may accumulate on the side toward the southwest from an overflow of the river or from precipitation. Such accumulations can escape only by following the line of the embankment to the river at the bridge. It is not unusual that, during the spring thaws when the ice leaves the river, gorges are formed which, varying in size and duration, impede the flow of the river causing temporary overflows of portions of adjacent lowlands. On March 4, 1910, such a gorge formed at a point about 350 yards above the defendant's bridge. At the same time a second gorge formed below the bridge nearly opposite the residence of the plaintiff. The upper gorge caused an overflow of water from above, which, being held in check by the volume detained by the lower gorge, accumulated on the upper side of defendant's embankment, rising in places approximately to its crest and threatening its safety. The general level of the stream and the flood water was then stationary at about 5 1/2 feet above the normal stage, but was not sufficiently high to flood any substantial portion of plaintiff's lands on either side of the river. On March 5th a strong wind began to blow from the west, driving the water against the embankment so that it began in places to wash out the material from under and between the ties. Having concluded that a removal of the upper gorge would permit most of the flood waters to escape by the main channel of the river and that the embankment would thus be relieved from danger, the employés of defendant, though they knew of the lower gorge, on the afternoon of March 6th blew it out with dynamite, with the result that the torrent of water thus released, being caught and in part detained by the lower gorge, raised the level of the stream below to a height of 10 feet, and caused it to overflow substantially all of plaintiff's lands to the depth of several feet, flooding plaintiff's residence, destroying his household effects, and depositing upon his orchard, garden, and meadows, in places, large amounts of boulders, sand, and drift timber, and in others washing away the soil to such an extent as to render these portions of them wholly useless. These facts are not controverted. There was also evidence tending to show that plaintiff's lands would not have been flooded at all but for defendant's interference with the upper gorge. There was some conflict in the statements of the witnesses upon the question whether on the morning of March 6th the flood water held by the embankment had so far subsided as to remove the threatened danger to the track, and thus the necessity for defendant to blow out the gorge as a protective measure. Under the rule of law applicable to cases of this character, as we shall see later, we think it wholly immaterial whether the necessity arose for action on the part of the defendant or not.

At the trial counsel for the defendant assumed the position that when the defendant, engaged as it is in the performance of a public duty, was confronted with the emergency created by the gorge rendering its roadbed and track unsafe, and the necessity was thus created for it to act in order to remedy the dangerous condition and safeguard its passengers and freight, it had the right to adopt any means suitable to that end, and hence that the plaintiff could not recover for any damage suffered by him by reason of the course pursued by the defendant. This position is shown by special requests for instructions tendered by the defendant the theory of all of which is exemplified by the following: "The defendant railway company, as a common carrier of persons and freight was in duty bound to exercise the highest degree of care to protect its line of railroad from being injured or destroyed and to take all necessary precaution to prevent its line of railroad from becoming unsafe or dangerous for the movement and operation of its trains and cars over its said line of railroad. And if you find from the evidence in this case that the existence of the said upper ice gorge, and the accumulation of ice, water, and material caused thereby, made it necessary for the defendant company, in order to protect its bridge, roadbed, and tracks and to keep the same safe so as to enable it to operate its trains and cars with safety to passengers and freight carried over its line of road, to remove said gorge, and the said ice gorge was so...