21 S.W.2d 140 | Ky. Ct. App. | 1929
Affirming.
S.H. Frazier instituted an action against the Louisville Nashville Railroad Company to recover damages for injuries to his property, caused, as he alleged, by the *108 negligence of the railroad company. Frazier's farm contains about 165 acres, and both the railroad and a creek known as Old House Branch run through it. The railroad constructed a fill or embankment in front of plaintiff's residence and a culvert under the fill to carry the natural flow of the water in the creek. The house and railroad track were practically on the same level. In May, 1927, there was an extraordinary rainfall in that section of the country, and great damage was done to property along the streams. Large quantities of driftwood and other debris stopped the mouth of the culvert near Frazier's house and piled up in the creek for some distance from the railroad. It was alleged that the railroad company carelessly and negligently permitted that condition to remain for an unreasonable length of time, and that on the 2d of July, 1927, another heavy rainfall came, and, by reason of the culvert being closed with the deposit described, the water was diverted from its natural course and overflowed plaintiff's premises, thereby injuring his household goods and other property. The railroad company denied any negligence or injury caused by any act of itself or its servants, and in a second paragraph of its answer pleaded that both rains were so extraordinary and unusual as to be entirely beyond control, and that all the damage was caused by the extraordinary rainfalls and not by any neglect of duty on the part of defendant. In an amended answer tendered by the railroad company, but which was not allowed to be filed, it was pleaded that the plaintiff himself had failed to clear his property of driftwood and debris and that the obstruction complained of was caused by his own failure to remove the obstruction, and that thereby his own conduct caused the injury complained of and but for which it would not have occurred.
The case was tried before a jury, and at the conclusion of the evidence defendant entered a motion for a peremptory instruction, but the court withheld its ruling. The defendant then offered its testimony, and the plaintiff in turn introduced some rebuttal evidence. At the conclusion of all the testimony the court sustained the motion for a peremptory instruction and directed the jury to return a verdict for the defendant, which was accordingly done. A new trial was requested and refused, and the plaintiff has appealed.
It is argued on behalf of appellee that the motion and grounds for a new trial were not filed in time, thus *109
precluding from review all questions except the sufficiency of the pleadings to support the judgment. A motion for a new trial must be made at the term at which the verdict or decision is rendered, and, except for newly discovered evidence (Civil Code, sec. 340, subsec. 7), must be made within three days after the verdict or decision is rendered, unless unavoidably prevented (Civil Code, sec. 342). The verdict in this case was returned on Thursday, May 31st, and it appears that the motion for a new trial was not made until Monday, June 4, 1928. If this was all that appeared, the contention of appellee would be sound (Witt v. L. E. Ry. Co.,
Appellant insists that the court incorrectly instructed the jury to find for the defendant. That depends upon the fact whether there was any evidence to sustain the cause of action alleged by the plaintiff. When the facts proven, and the inferences reasonably arising therefrom, tend to support the cause of action asserted the case should be submitted to the jury. Sydnor v. Arnold,
Our consideration of the record leads us to the conclusion that the circuit court ruled rightly when it directed a verdict for the defendant.
The judgment is affirmed.