143 Wis. 169 | Wis. | 1910
Tbe plaintiff sought to recover damages done to a quantity of bay in bis bams and also for growing grass destroyed by a flood in the La Crosse river bottom lands on July 21, 1907. He contended that tbe flood waters were
Tbe defendant, appealing to this court, contends tbat tbe flood was extraordinary and unusual, and tbat there is no sufficient evidence to show tbat plaintiff’s damages were caused by tbe negligent construction or maintenance of the bridge in question, and tbat tbe court erred in its instructions to the jury. We are furnished by tbe appellant with no map or chart, and for this reason find it difficult to get relative boundaries^ courses, or directions with accuracy. Such map and survey are almost indispensable when the appellant claims, as it does here, tbat by mathematical calculation and proper interpretation of tbe testimony it appears affirmatively tbat tbe plaintiff’s damages were not caused by tbe inadequacy of tbe bridge in question.
We gather from the oral evidence tbat tbe La Crosse river, with tbe adjacent wide bottom lands, extends from Medary southwest about four miles to its junction with tbe Mississippi river. This extension is crossed by several bridges between Medary and tbe Mississippi, tbe farthest upstream being tbat of tbe Chicago, Milwaukee & St. Paul Railway Company running east and west, having a clear opening for tbe passage-of water of 2,768 square feet; next tbat of tbe Chicago & Northwestern Railway Company running east and west and having a clear opening for tbe passage of water of 3,075 square feet; next a wagon road and bridge, called tbe
The flood took place on or about July 21, 1907, and was-caused by a rainfall on that day of 4.48 inches in fourteen and one-half hours at La Crosse and a considerably heavier rainfall at the same time on the upper waters and tributaries of the La Crosse river. Haying was at this time in progress on plaintiff’s farm, which is in the bottom lands mentioned and part of which is upstream from defendant’s railroad bridge. Plaintiff had nine bams in which his hay was stored, eight of them above this bridge in question. The-damages claimed to growing grass practically dropped out of the case before verdict, and' it is apparent that the verdict of the jury is based upon the damage done to hay in some of these bams by the flood. Between the defendant’s bridge and the Abattoir Road bridge the river banks are higher than the bottom lands lying further from the river, and the surface of the water in the river at ordinary stage is higher than the bottom lands which lie at some distance from the riverbanks. This, as is well known, is not an unusual condition in deltas and flat alluvial valleys.
We are unable to ascertain with accuracy how far it was from the northwest boundary line of the flood to that point in the defendant’s bridge where the bridge spans the river channel. From a point called Grand Crossing south on defendant’s line of railroad the track appears to rest on piling for more than 3,000 feet in length, and at 3,000 feet from that
The instruction criticised related to the second question of the special verdict, which inquired whether the bridges of the defendant were of sufficient capacity to allow the passage of the flood waters with driftwood and other materials, etc. The court instructed the jury that the defendant was bound to know and take into consideration in the erection of its. bridges the area of the La Crosse river valley, the bluffy nature of its sides rendering it subject to a rapid rise of the water, and the fact that at times it carried large quantities of brush and debris and sometimes stumps and trees, and the amount of rainfall in the past, the occurrence of high water in the past, the location of plaintiff’s barns, their liability to be injured, and each and every fact within its knowledge affecting the height of the water and its liability to do damage. In criticising this charge we must keep in mind that the right of the defendant to construct and maintain the bridge in question is not denied. The inquiry is whether it exercised that right carefully, or whether by lack of ordinary care it so exercised that right as to injure others. Schmeckpepper v. C. & N. W. R. Co. 116 Wis. 592, 93 N. W. 533. The instruction in this respect amounts to informing the jury that in building bridges of this kind the surrounding conditions and liability of the adjacent property to-injury must be considered, and that the defendant is bound to know and take into consideration those things which are apparent and exercise ordinary care in adjusting its construction to the situation.
We see nothing improper in this instruction so construed.
Instead of submitting to the jury directly the question whether the flood of July 21, 1907, was an unusual or extraordinary flood, the court submitted: “Was the storm of July 21, 1907, and the flood resulting therefrom in the La Crosse river, such as should reasonably have been anticipated to occur?” But in connection with this question the court ■explained to the jury that they were to consider whether the flood was an unusual or extraordinary flood, explained the terms “unusual” or “extraordinary,” instructed that the railroad company constructing an embankment or bridge is not required to make provisions against such unusual or extraordinary floods as cannot be foreseen by men of ordinary •experience and ordinary prudence in the locality where such flood occurs, but that the defendant ought reasonably to have •anticipated all floods and freshets which occur annually or at longer intervals, and which, from having been known to occur at longer or shorter intervals, may be reasonably expected to occur again. As explained by this instruction the ques
By the Oourt. — Judgment affirmed.