81 Neb. 430 | Neb. | 1908
This is the second time this cause has appeared in this court. The case upon the former hearing is reported in 76 Neb. 420. The action is for damages alleged to have resulted to the growing crops of plaintiffs, caused by the damming up and changing of a watercourse on the land of plaintiffs by an embankment created for defendant’s railroad track. Two streams, referred to as the North and South Porks of Salt creek, pass through plaintiff’s land, forming a junction below or after passing beyond plaintiff’s boundary line. At a point where it is claimed the cause of damage to plaintiffs was located the distance between the two streams was approximately a quarter of a mile. In 1893 the defendant constructed its railroad across plaintiffs’ land, crossing the streams at the points designated, constructing a pile bridge across the north fork some 200 or more feet in length, thus, as is claimed, allowing ample room for the passage and flow of the stream under the bridge. A similar bridge was constructed across the south fork about 150 feet in length, thus providing ample space for the flow beneath the bridge of the south fork. In 1898 the bridge across the north fork was taken out, the creek bed filled, and a new channel cut along the west or upper side of the railroad track, diverting the water from the north to the south stream, causing it to empty into the south stream just above the bridge. The 150-foot pile bridge was taken out, and a steel bridge about 90 feet long, resting upon concrete abutments, substituted in its stead. The em
There seems to be no question but that defendant’s railroad Avas constructed as above stated and as claimed by plaintiffs. It may also be said that the flood of Avater coming doAA'n the two streams was unusually great, and that the property of xflaintiffs was destroyed to at least the extent of the amount named in the verdict and judgment. The principal questions submitted to the jury were as to the nature and extent of the storm and flood, that is, whether they should be classed as what is known in
Upon the trial the court upon its own motion gave 15 instructions to the jury. The defendant requested the giving of 13 others, all of which the court refused to give. All instructions given were excepted to by defendant, as well as the refusal to give those requested. As the substance of the instructions refused was largely contained in the instructions given by the court we will not notice them further. The instructions given by the court are in the main such as have heretofore had the approval of this court, and ■ will not be here discussed, except where specially assailed. It was contended at the trial, and is stated in defendant’s brief, that “the burden of proof is not upon the railway company to show that the injury was due to the act of God, but upon the plaintiffs to prove that the loss was not occasioned by Providence,” and the case of the City of McCook v. McAdams, 76 Neb. 7, is cited in support thereof. Since the preparation of defendant’s brief in this cause, a rehearing was had in that case, and it was held that, where the act of God was presented as a defense in a case of negligence, the burden of proof was on the defendant to establish
Instruction numbered 3, requested by defendant and refused by the court, is to the effect that it was not claimed by plaintiffs that the defendant was guilty of negligence in the original construction of its road in 1892, 1893, and that it was for the jury “to determine whether the changes made with reference to the embankment in 1898 were skilfully and carefully or negligently and carelessly made.” There is no record made by the court as to whether this instruction was given or refused, nor whether there was any exception to any action of the court thereon. But, as there was a list of exceptions filed in which it is said, “the defendant excepts to the refusal to give instruction numbered 3 requested,” we will.assume that the instruction was not given, and that due exception was taken. We are unable to see that any prejudice could result to defendant by the failure to give the instruction. We have been unable to discover anywhere in the record any claim by plaintiffs that the original construction of defendant’s railroad was in any way negligent or wrongful. It is alleged in the petition that prior to the commission of the wrongs complained of the defendant constructed its line of railroad across plaintiffs’ farm and has since operated said line of road; that some time prior to the year 1902 the defendant constructed an embankment across said stream and entirely filled up said stream, and left no opportunity for the water to pass along its former and natural course underneath'the roadbed of the defendant’s railroad, but completely dammed said stream at the point where the same is intersected by the said line of road. There was no claim during the trial that any injury was caused by the original construction of the railroad. There was no issue of that kind before the jury upon which the court had not given suitable instructions.
After the introduction of the evidence, and before the
It is contended that the damages allowed by the jury were excessive; the amount being $663.33, including interest. The evidence showed the loss of 35 acres of oats of the value of $8 to $10 an acre; 15 acres of wheat in the shock of the same value an acre; 85 acres of corn of about the same value, besides meadow land and live stock.
Tlie court instructed tlie jury that in case their finding ivas in favor of plaintiffs they should ascertain from the evidence the value of the property damaged or destroyed, and the same with interest at 7 per cent, per annum from the 10th day of July, 1902, would be the amount of their verdict. Complaint is made of this instruction on the ground that plaintiffs were not entitled to interest. This question has been before this court in Fremont, E. & M. V. Rt. Co. v. Harley, 25 Neb. 138; Union P. R. Co. v. Ray, 46 Neb. 750; Missouri, Kansas & Texas Trust Co. v. Clark, 60 Neb. 406. The law is settled in this state that interest in such cases will be allowed.
We are unable to detect any error in the record calling for a reversal of the judgment of the district court. It will therefore be, and is,
Affirmed.