159 Iowa 666 | Iowa | 1913
The damages, which plaintiff seeks to recover, were due to the same storm as caused the injuries complained of in De Lashmutt v. Railroad Co., 148 Iowa, 556, and the negligence charged is the same as was the gravamen of the charge in that case. De Lashmutt’s land was on the west of the drainage ditch referred to in the opinion cited, while plaintiff’s land is east of the ditch. Aside from the question of proximate cause, the case referred to settles the question as to the sufficiency of the testimony to take the case to the jury upon the issue of defendant’s negligence; and as to its duty and liability in the premises and although it is argued, on this appeal, that there was not sufficient evidence of defendant’s negligence to take the case to a jury, and that defendant is not liable for the overflow of the ditch,' and that the flood was unprecedented in character, these matters must be considered as foreclosed by the opinion in the De Lashmutt case. It is further argued that the overflow of the creek and the damage to plaintiff’s crops is not shown to have been the proximate cause of plaintiff’s injury. As in the De Lashmutt case, we think this was a fair question for the jury; the testimony being sufficient to carry the issue to that body. We shall not set out the testimony, nor refer, at length, to the facts, for enough of these are set out in the former opinion to indicate the nature of the controversy.
(iOther rulings on the admission of testimony are complained of, which were either entirely correct or without prejudice.
IY. Two instructions asked by defendants were refused, and this is argued as error; and it is also contended that the court erred in giving the eighth and eighteenth paragraphs of its charge.
The first request related to the measure of damages, and the court gave the substance thereof in its charge to the jury. The second had reference to the weight which the jury should give to opinion evidence regarding the value of crops. This, too, was covered in a general way, and defendant has no just ground of complaint.
The eighth and eighteenth instructions read as follows :
5. Drainage: obstruction of surface waters: instructions. (8) In this connection, you are instructed that it is the duty of a railway company, where it crosses a stream, to Provid-e passageways for the water of the stream reasonably sufficient to allow it to flow through without being diverted from its nat1 .... .. ural course, or being banked up so as to cause damage to the property of another. It is required to anticipate and make provision for such floods as may occur in the ordinary course of nature. And it must also foresee and provide for such unusual storms as may occasionally occur, whether they be called ordinary or extraordinary; but a railroad company, in building its roads, bridges, and culverts, is not required to provide for unprecedented floods, nor is it guilty of negligence*671 in failing to provide for a flood which is not only extraordinary but unprecedented, and which could not have been reasonably foreseen.
(18) It is not claimed under the testimony that the stubs of piling in the waterway beneath said bridge were there on July 14, 1907. The testimony shows that the stubs of piling were removed before that date. The plaintiff, however, claims that said stubs of piling were left in the waterway when the steel girder bridge was constructed, and that they extended above the bottom of the waterway and obstructed the flow of water and caught debris and other deposits, and thereby, in a more or less degree, filled up the ditch at the point in question and filled up the ditch to some extent further up the stream, and in that way materially lessened the sufficiency of the ■waterway at the defendants’ bridge.
Instructions similar, if not identical, were given in the De Lashmutt case and held proper. In this connection we here quote, from the record, the following instructions, which, as we think, fully and fairly presented the issues tendered by the defendant. They read:
(21) . . . On the other hand, however, if you find that the overflowing of the levee at the point in question was caused by the faulty and defective construction of the drainage ditch or of the levee in question, or the insufficient capacity of the ditch itself or by the careless and improper manner in caring for and maintaining the said ditch or levees, or from any other reason than the insufficiency of the waterway under said bridge, then and in either of such events it cannot be said that the insufficiency of the waterway, at the bridge, was the direct and proximate cause of the overflowing of the levee at the point complained of, and in that event plaintiff cannot recover.
(22) Or if you find, from the evidence, that above the defendant’s bridge and right of way and below the elbow, referred to in the testimony, the fall in the bottom of the ditch, as originally constructed,, was slight and considerably less than it was above said elbow, and if you further find from the evidence that the capacity of the passageway for the water at such turn or bend was less than it was above said turn or*672 bend, and if you further find that by reason of such conditions a volume of comparatively dead water was thereby caused to be accumulated between said bridge and said elbow, and that the pressure or weight of the volume of water moving down from above was thereby thrown against the levee at or near said elbow and the water was thereby caused to undermine or break over said levee at the point complained of, without regard to the insufficiency of the waterway, at said bridge, that will be sufficient to justify you in finding that the insufficiency of the waterway at said bridge was not the direct and proximate cause of the breaking of the levee complained of, and your verdict should be for the defendant.
(23) Or if you find from the evidence that in the. construction of the said ditch and levees the water in that vicinity was thereby turned and diverted from its ordinary and natural flow and outlet, and a greater volume of water thereby caused to seek an outlet under the defendants’ bridge than had theretofore ordinarily and naturally passed thereunder, and if you further find that because of such increased volume of water, and the additional pressure or weight thereof, the levee at the point in qestion was caused to be undermined and broken through, that will be sufficient to justify you in finding that such additional volume of water, so diverted from its ordinary a.nd natural channel, was the direct and proximate cause of the breaking of the levee at the point in question, and in such event plaintiff cannot recover and your verdict should be for the defendants.
The trial court did not err either in the instructions given, or in refusing to give those asked.
Finding no prejudicial error in the record, the judgment must be, and it is, Affirmed.