49 Iowa 378 | Iowa | 1878
Counsel for appellant contend, if we understand them, that the question is not as to whether the water-ways have proved sufficient, but whether the defendant’s engineer had reasonable grounds to believe they were sufficient at the time they were constructed. Taking this to be the question, they further contend that the engineer had such grounds, and that one of them was, that other engineers expressed an opinion that they were sufficient. If this is not hearsay evidence it is because the mere expression of opinion by the other engineer is a fact proper to be shown in defense, regardless of the question as to whether the opinion was right or wrong. The rule contended for appears to be, that a person who has been employed and paid to execute a piece of work may show that he executed it with reasonable care and skill by showing that he acted in accordance with the advice of other persons, skilled in the same line of work, but who were charged with no responsibility concerning it. Such, we think, is not the law, and in excluding the offered testimony there was no error.
II. The court instructed the jury as follows:
“2. A railway company, in constructing and maintaining its railways, is required to use reasonable diligence to prevent injuries to neighboring proprietors, of the kind of those complained of by plaintiff. The degree of diligence to which it is held in this respect requires it to so construct and maintain its roadways as to admit the passage of the surface water. It, however, has performed this duty when it has constructed its roadways in such manner as to admit the amount of sur*380 face water which ordinarily flows by or over the ground over which it constructs its roads, and so maintains them. It is not required to contemplate or provide against the occurrence of events which do not happen in the ordinary course of nature. The question, then, which you are to determine in connection with this branch of the case, is whether the defendant maintained the tracks or embankments of its railway in such condition as to prevent the passage of such amount of surface water as is caused by the ordinary rainfall of this country. The burden of proof that is with the plaintiff requires him to establish that defendant did not so maintain its track and embankment. If he has established this fact he has shown such degree of negligence on the part of defendant as would render it liable, if the other facts were established which you have been told must be established by plaintiff in making out the case.”
“4. By the ordinary rainfall and the ordinary flow of surface water I mean such fall of rain as is liable to occur in the ordinary course of nature in this climate and country, and such flow of surface water as would be caused thereby.”
No question is made as to the correctness of these instructions, but that, under the evidence and law announced in the instructions, the verdict should have been for the defendant. The evidence, without conflict, showed that the plaintiff’s premises were inundated three different times during the summer of 18?5. The flow of water was caused by three rainstorms, occurring within the period of three months.
The witnesses unite in designating these storms and rainfall to be extraordinary. Without doubt the storms were unusual, and the rainfall was something more than of an ordinary character.
An ordinary rainfall, as defined by the court, is such “as is liable to occur in the ordinary course of nature in this climate and country.” This definition includes such unusual storms as occasionally occur. They are extraordinary because they do not ordinarily occur. It is well known, however, such
III. There was evidence tending to show that an adjoining proprietor had erected a dam whereby the flow of the water was somewhat changed, and in reference thereto the court instructed the jury, in substance, that if the improvements made by such proprietors upon their own premises rendered the passage-ways insufficient, it was the duty of defendant, upon notice of such improvements, to make such changes in the water-ways as would permit the flow of the water.
The evidence showed, without conflict, that the water, after the erection of the dam, flowed through a different channel from what it had previously, but that, notwithstanding this fact, it passed through the same water-way it had before the erection of the dam, and there was no evidence tending to show that the flow of the water was in any manner obstructed by the change of the channel.
Conceding the instruction to have been erroneous, it will be readily seen it was error without prejudice.
But no reason is "shown why this testimony was not procured and introduced at the trial. The survey could have been made just as well before as afterward. It would naturally occur, it seems to us, to the defendant that the respective heights of plaintiff’s door-sill, floor and the embankment might become material. That the plaintiff intended to claim the water covered at least a portion of his floor clearly appeared from the petition. The defendant should have been prepared to meet such claim, and unless prevented from procuring the testimony by accident, misfortune, or some casualty which could not, with reasonable diligence, be guarded against, the defendant cannot now be heard to complain.
Having considered all the errors assigned which have been argued by counsel, the judgment of the District Court must be
Affirmed.