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Schuylkill Navigation Co. v. Thoburn, 7 Serg. & R. (Pa.) 411; Smith v. Gould, 61 Wis. 31; s. c., 5 Am. & Eng. Corp. Cas. 472.

See also Beseman v. Pennsylvania R. Co., 33 Am. & Eng. R. R. Cas. 107; Pennsylvania R. Co. v. Marchant, and note, 33 Ib. 116, 140.

GULF, COLORADO, & SANTA FÉ R. Co.

ບ.

POOL.

(Texas Supreme Court, May 15, 1888.)

Construction of Road Embankment - Opening of Bridge. - Where a railroad company constructs an embankment as an approach to a bridge across a creek, it is the duty of the company to leave a sufficient opening for the water, caused by ordínary rains, flowing along the creek, and following the usual course, to escape, so as to prevent the same from causing any injury to the adjacent lands and crops; but the company is not bound to provide against damages caused by such extraordinary floods as would not have been reasonably foreseen by a man of ordinary engineering skill or sagacity.

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Same- Overflow Injury to Crops-Measure of Damages. In an action to recover damages for injuries to crops, through an overflow caused by the negligent construction of an embankment, the measure of damages is the market value of the crops at the time they were destroyed, and the injuries to the land as shown by the testimony.1

APPEAL from District Court, Bosque County.

Action by J. B. Pool against the Gulf, Colorado, & Santa Fé Railway Company for injuries to plaintiff's crops and land, caused by an overflow of water consequent upon the alleged negligent construction of a bridge and embankment. Defendant appeals from a verdict of judgment for the plaintiff. The facts sufficiently appear in the opinion.

W. M. Flournoy for appellant.

Facts.

WALKER, J. Appellant was sued by appellee for damages for injury to his land, and crops of cotton and oats, adjoining the track of the railway of appellant, caused by alleged negligence in its construction of a bridge and an embankment north of the bridge, whereby the waters of Neil's Creek were swollen by rain, were thrown over the adjoining fields, washing away the soil, and destroying the growing crops thereon. The petition described the situation of the land,

I OBSTRUCTION OF STREAM BY BRIDGE, thereby causing the flooding of adjacent property. See ante, Omaha & R. V. R. Co. v. Standen, 179, and note 186.

Interruption

of crossexamination by the court.

the dimensions of the embankment, the want of culverts and sluices, and the width of space left at the bridge in its construction, and alleged defects; giving also a history of the effect floods had upon the land before the obstruction. The extent of injury to the land is set out, and the acreage, and value per acre of the crops alleged to have been destroyed. The demurrer and exceptions were overruled. The special exceptions applied to the details given, which might have been omitted; but their presence, as indicating the scope of the testimony to be introduced, could have been of no injury to the defendant. There was no material error, then, in overruling the exceptions. Complaint is urged against the action of the court in interrupting counsel for defendant in the cross-examination of the witness Preston. The explanation given by the judge in the bill of exceptions must be taken as true, "that the court did say that the witness had already answered the question several times, and he thought that was often enough; he thought the witness had been cross-examined fully enough on that point. But the defendant had full liberty, and did continue the examination as to other matters. Counsel was stopped because he was persisting in interrogating the witness upon a matter about which he had answered fully several times." In the examination of witnesses the subject lies chiefly in the discretion of the judge before whom the cause is tried. The great object is, to elicit the truth from the witness; but the character, moral courage, bias, memory, and other circumstances of witnesses are so various as to require almost equal variety in the manner of interrogation, and the degree of its intensity, to obtain that end. 1 Greenl. Ev. sect. 431. It does not appear that any injury resulted, or could have resulted, from the action of the judge, in the exercise of his duty, in directing the examination; and his action will not be revised. It was also within the discretion of the court to permit the plaintiff to be recalled to correct his evidence before given. By the testimony plaintiff's case was, that the railroad track ran north through plaintiff's field, near the Bosque River on the east, and crossing Neil's Creek on plaintiff's land. The creek, at the bridge, ran at the foot of a hill on the south; the field rising gradually to the north and east. The bridge spanned the creek from the hill on the south to an embankment thrown up to support the track to the north. The embankment is variously estimated at 7 feet to 15 feet in height. The track from the bridge descended for a distance from 500 to 700 yards, then ran off on a, level for about 250 yards, then began an upward grade. The embankment at the creek was only 18 inches or 2 feet high. The water broke

Nature of embankment.

to liability for extraordinary

floods.

over the track about 500 yards from the bridge, and for about 250 yards the embankment and track were washed away; the water running with much force along the west side of the embankment north (or up hill, as stated by one witness), and making a passage eastward across the track, destroying totally about 40 acres of cotton on the west, and 14 acres of oats on the east of the track. On the west much soil was washed off; all the loose soil taking the cotton by its roots, leaving the surface in holes. The testimony was conflicting as to the dimensions of the opening at the bridge left for the passage of the waters of the creek. It was in evidence that the creek had been as high before in 1884, 1873, 1872, and 1870. The flood in 1884 was harmless, from the backwaters from the Bosque preventing any current. There were no culverts in the embankment. The court charged the jury "that it was the duty of the company to leave sufficient opening [at the track] for the water caused by ordinary rainfalls flowing along said creek, and following the usual course, to escape, so as to prevent the same from causing any injury to the plaintiff's Instruction as land and crops. But defendant was only bound to provide against such damages as could have been reasonably anticipated, and would not be guilty of such culpable negligence as to make it responsible if it failed to provide against such extraordinary floods as would [not] have been reasonably foreseen by men of ordinary engineering skill and sagacity, required in the construction of such railroads in general. By the expression 'extraordinary floods,' as used herein, is meant such floods as are of such unusual occurrence, as could not have been foreseen by men of ordinary experience. and ordinary prudence. Ordinary floods are those the occurrence of which may be reasonably anticipated from the general experience of men residing in the region where such floods happen." The liability of want of such care and skill was given. The measure of damages given in the charge was the market value of the cotton and oat crops at the time, if any, they were destroyed, and the injury to overflow. the land as shown by the testimony. The jury were also charged that "if they found from the testimony that the bridge and the embankment were properly constructed, having sufficient opening for the escape of the water from ordinary rainfalls, and sufficient culverts and sluices in said embankment for the escape of the water from such rainfalls, . . . or if the injury was caused by an extraordinary rainfall, to find for the defendant. The verdict was for $600 damages to the land, and $470 for the destruction of the cotton and oat crops. The court, in its general charge, gave the law applicable to the case as

Measure of

damages for

Conflict in testimony. Case properly presented to jury.

made by the testimony. There was no error in rejecting the additional charges as to the duty and the degree of care and skill required by the defendant, and the conditions of its liability for damages. The rule for computing damages is not subject to criticism. Railroad Co. v. Helsley, 62 Tex. 596; Railway Co. v. Tait, 63 Tex. 223; Railroad Co. v. Johnson, 65 Tex. 393. The conflict in the testimony as to the sufficiency of the opening left at the crossing of the creek, whether the bridge and embankment were properly constructed, as to whether this was an extraordinary rainfall, as to the water actually breaking through the embankment, and the flood of water towards and through the break, the destruction and value of the crops, and the extent of the injury to the surface of the land, were all subjects to be passed upon by the jury. The absence of sluices and culverts, alleged in pleadings, and noticed in the charge of the court, could not have injured defendant. A failure to establish his case in part will not affect his rights upon what plaintiff was able to and did establish. The main facts were few, and seemingly well supported by testimony. The embankment did raise the water; the water broke through the embankment; a current flowed northward towards the break, taking the cotton and surface soil in its course, and covering the oat-field on the east of the embankment with mud. The creek had been as high before, and inquiry would have shown it; and ordinary care would have demanded, upon the information, that such foods should have been guarded against. We find no error. The judgment is

affirmed.

Measure of Damages for the Overflow of Land. - See Owens v. Missouri Pac. R. Co., 30 Am. & Eng. R. R. Cas. 205, note, 209.

SABINE & EAST TEXAS R. Co.

v.

WOOD.

(Texas Supreme Court, Feb. 7, 1888.)

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Construction of Road Negligence - Flooding. A railroad company, in the construction of its road, raised a solid embankment at some distance from the seashore. At the time of construction its engineer was informed that if the embankment was made solid, the waves would, during wind-storms

blowing towards the land, be carried over the land lying between the embankment and the shore, and that the water, instead of flowing into the back country, which was at a lower level, would be impeded by the embankment, and damage would consequently result to the building between the embankment and the shore. After the construction of the embankment a wind-storm occurred, during which the water was carried over the land as far as the embankment; and, its flow being impeded thereby, it was dammed back to a depth of four or five feet. Held, that the company was liable for damages caused through the construction of a solid instead of an open embankment.1

APPEAL from Jefferson County District Court.

Action by R. L. Wood against the Sabine & East Texas Railroad Company to recover $2,253.25 as damages for injuries to his person and property alleged to have been caused by reason of the defendant's negligence. Verdict for the plaintiff for $1,200, and judgment thereon, from which defendant appeals. The facts are stated in the opinion.

O'Brien & John for appellant.

Tom J. Russell and Hal W. Greer, for appellee.

Facts.

STAYTON, J. -This action was brought by the appellee to recover damages for the loss and destruction of personal property owned by him, and for injury done to his person, all of which he alleged resulted from the failure of the appellant properly to construct its railway near the town of Sabine Pass. The defendant alleged that its road-bed was properly constructed, and that the injury resulted from water driven. upon the land by an unusually severe storm, "which the greatest care and skill in the construction of its road-grade could not have prepared against." The evidence shows that Sabine Pass is situated on the west side of Sabine Lake and Pass, and that the land there, and for a considerable distance above, is elevated only about two feet above the sea-level. The land back is perhaps lower, and for many miles into the interior the country presents this low, flat surface, over which, at times of high wind from the east and south-east, water from the lake, pass, and gulf spreads. The appellant constructed its road-bed some 1,200 or 1,500 feet west of the west bank of the pass, but at the town of Sabine Pass it approached near to the shore. Its road-bed, which consisted of an embankment of earth, was four or five feet high; and between this and the lake or pass a part of the town of Sabine Pass was situated. The appellant was living in a house in that part of the town which was destroyed by high water that came in during a high wind on June 14, 1886, and

1 SURFACE WATER. - For general discussion of the doctrines of surface waters, see ante, Philadelphia, W. & B. R. Co. v. Davis, 143, and note 148-151.

DAMMING BACK WATER, liability for. See Olson v. St. Paul, W. & M. R. Co., ante, 154.

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