Yazoo & Mississippi Valley Railroad Co. v. Davis

• Decision Date: 02 March 1896
• Citation: 19 So. 487,73 Miss. 678
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. S. C. DAVIS ET AL
• Court: Mississippi Supreme Court

19 So. 487

73 Miss. 678

YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. S. C. DAVIS ET AL

Supreme Court of Mississippi

March 2, 1896

March 1896

FROM the circuit court of Leflore county HON. R. W. WILLIAMSON Judge.

The opinion states the substance of the evidence. The following instructions, some of which are not numbered, were given for plaintiff:

"If the jury find for the plaintiff, the form of their verdict will be, we, the jury, find for plaintiff, and assess their damages at dollars."

"3. If the jury believe, from the evidence, that defendant carelessly obstructed the flow of water, flowing in natural water courses, so as to cause the same to overflow plaintiffs' land to their damage, then the jury will find for the plaintiffs, and assess their damages at whatever amount may be established by the evidence."

"If the jury believe, from the evidence in the case, that the waters of Big Sand and Teocalia creeks and the overflow waters of Yalobusha river, flowing through or near to plaintiffs' land, found harmless exit and egress through certain defined and natural water courses before the filling of the openings in defendant's roadbed, and that defendant neglected and improperly obstructed such water courses, and that, by reason of such obstruction plaintiffs' land was damaged, defendant would be responsible for such damages as evidence shows plaintiff suffered thereby."

"The court instructs the jury that while the defendant corporation has the right to the use and possession of its own soil including the right of way, yet, if in the construction or repair of its roadbed, it adopts a method foreseen to be fraught with peril and injury to others, when any other method, equally safe, convenient and useful, is available and injury thereby results to another, the law imputes negligence and carelessness to the corporation."

The following instructions were given for defendant:

"3. The court instructs the jury that the burden of proof is on plaintiffs to make out their case by a preponderance of testimony, and, unless this is done, then the jury will find for the defendant."

"6. The court instructs the jury that if they believe, from the evidence, that the plaintiffs' land is overflowed by surface water or overflow waters from the streams adjacent to or near by said land, without reference to said railroad embankment, then the jury will find for the defendant."

"6. [This number repeated.] The court instructs the jury that if they believe, from the evidence, that the land of defendant is not injured on account of the filling in of said trestles, then the jury will find for the defendant."

"7. The court instructs the jury that damage to plaintiffs' land is not to be presumed, but must be proven, and unless plaintiffs show, by the preponderance of testimony, that said land is injured as charged in plaintiffs' declaration, then the jury will find for the defendant."

"8. The court instructs the jury that unless they believe, from a preponderance of the evidence, that the damage done to the Davis land by overflow waters, if any damage is done, has been caused by the filling of the trestles as shown by the evidence, then they must find for the defendant."

"9. The court instructs the jury that if they find for the defendant, their verdict will be, we, the jury, find for the defendant."

The court refused to give the following instructions for defendant:

"1. The court instructs the jury that if they believe, from the evidence, that the openings in defendant's railroad are sufficient to carry off all ordinary overflows from Big Sand and Teoc creeks, then the jury will find for the defendant."

"6. The court instructs the jury that the defendant is not liable to any damage that plaintiffs may have sustained by reason of the overflow and surface waters from Yalobusha river, and if the evidence shows that said lands are injured by said waters from the Yalobusha river, then the jury will find for the defendant."

"The court instructs the jury to find for the defendant."

Defendant asked the court to give the following instruction:

"4. The court also instructs the jury that if they believe, from the evidence, that the openings in defendant's railroad are sufficient to carry off the water of all ordinary overflows, then the jury will find for the defendant." The court modified this instruction as follows: "The court instructs the jury that if they believe, from the evidence, that the openings in defendant's railroad to carry off the waters of all overflows, except such as are unprecedented, then the jury will find for the defendant."

Defendant then asked the following instruction, which is not numbered:

"The court instructs the jury that if they believe, from the evidence, that the lands of plaintiff are damaged by the overflow of Yalobusha river and other waters combined, and that the openings in said railroad are sufficient to carry off said water, when it begins to fall, then the jury will find for the defendant."

This instruction was modified as follows:

"The court instructs the jury that if they believe, from the evidence, that the lands of the plaintiff are damaged by the overflow of Yalobusha river and other waters combined, and that the openings in the railroad are sufficient to carry off said water, then the jury will find for the defendant."

Defendant excepted to the court's action in refusing and modifying its instructions.

There was a verdict and judgment for plaintiffs for $ 416.66.

Defendant's motion for new trial was overruled, and it appealed.

Judgment reversed and cause remanded. Judgment reversed and cause remanded.

Mayes & Harris, for appellant.

None of the witnesses speak definitely as to the amount of the additional overflow which was caused by the filling in of the trestles. But it is distinctly shown, by the witnesses for the plaintiff, that the land has always been subject to overflow, more or less, the extent being greater sometimes than at others, and the water remaining on the land longer sometimes than at others, owing to the extent and duration of the rainfall. Special attention of the court is called to the uncontradicted testimony of the defendant's witnesses, that when the Yalobusha river is up, the water flows from the Yalobusha, through the openings in the railroad track, over the land in question. In other words, instead of the water running west through the railroad into the Yalobusha, that the Yalobusha backs the water up so that it runs through these trestles east, and that the water will stay upon the land as long as the Yalobusha remains up. This would naturally follow from the topography of the country. So, when an unusually rainy season comes, and the Yalobusha gets up so that it backs the water up Big Sand and Teoc and up the bayous, there is no way for the water to get out, and the land would be overflowed just the same, whether the railroad was there or not; and the testimony in the case is all to the effect that it is only under these circumstances that the whole of the land is overflowed, and that these conditions are likely to arise at any time, and cannot be prevented by the construction of the railroad, and would not be prevented, even if the railroad was built entirely on trestles all across the land. We think, under the principles of law as settled by this court in the case of Kansas City, Memphis & Birmingham Railroad Co. v. Smith, 72 Miss. 677, that this is nothing but a case in which, owing to the peculiar topography of the country and the construction of the railroad, it is probably true that in some seasons, in unusually heavy rainfalls, more water comes to the plaintiff's land than probably would ordinarily come if the railroad was not there. This is as much as can be claimed from the testimony in the case. The case is very similar, if not on all fours, with the case of Kansas City, Memphis & Birmingham Railroad Co. v. Smith, supra, and we have, therefore, assigned for error the refusal of the court to give the peremptory instruction for defendant.

Instruction number one, for defendant, should have been given.

The court will see, from the testimony for plaintiff and the declaration, the cause of complaint was that the openings were insufficient to carry off the waters from the overflow of Big Sand and Teoc creeks. The very groundwork of plaintiff's case was this fact. His grievance was that the bayous--namely, Stump bayou and others--which were crossed by the railroad track, were natural drains for the overflow from Big Sand and Teoc creeks, and the railroad company filling in its trestles over these bayous had rendered them insufficient to carry off these waters. All the testimony in the case upon which plaintiff could rely was that these bayous were to carry off the overflow from these two creeks. If they were sufficient, that was all that was necessary, and the company was not required to provide openings to carry off waters from extraordinary or unprecedented overflows, and if they were sufficient to carry off all ordinary overflows from Big Sand and Teoc creeks, the railroad company had discharged its full duty to the plaintiff. Instruction number six should have been given. There is testimony in the case that the damage to plaintiff's land was not caused by any insufficiency in these openings, but was caused by waters from Yalobusha river, which rises suddenly and gets out of its banks and remains high for a long time, and it was not claimed that these openings were intended to carry off the waters of the Yalobusha, because these waters drained into that river, and that river was the outlet into which these drains emptied and, consequently, if the damage which plaintiff suffered was from overflow of the surface water of the Yalobusha, he was...