90 Neb. 795 | Neb. | 1912
This is an action to recover for flood damages to crops in tbe years 1907 and 1908. Tbe petition, mucb condensed, alleges that the defendant’s railway crosses a running stream, known as “Elk Creek,” near plaintiffs’ land; that prior to 1885 Elk Creek in that vicinity spread out forming a marsh, and'finally draining into tbe Missouri river; that tbe drainage of tbe flood-waters was through and over tbe marsh; that in 1885 tbe railway was constructed across tbe marsh and a trestle about 160 rods long built for tbe passage of tbe flood-waters of Elk
and under the trestle for the purpose of draining the ordinary waters of the marsh, but not for the purpose of draining the flood-waters; that afterwards the defendant filled the trestle, leaving about 281 feet, and by so doing negligently failed to leave sufficient openings in the era
The ánsAver denies negligence and that defendant shortened the trestle; alleges that plaintiffs’ land was a. swamp Avhen the railroad Avas built, without Avatercourse or drain; alleges that Dakota county constructed 'the drainage ditch, and it Avas the duty of the county to maintain it and keep it clear; that the injuries received were due to the construction and maintenance of the ditch and to dikes built by plaintiffs around their land which changed the .flow of water over the same. It is also alleged that the situation was well known to the plaintiffs before the
The evidence consists of about 1,200 pages of typewriting, besides maps, profiles and other exhibits. The court gave 48 instructions. There are 145 assignments of error. It is impossible to do more than mention a few of these, or to giAe more than a general statement of the evidence.
The line of defendant’s railway crosses AVhat is knoAvn as “Big Marsh” in Dakota county, Avliich is situated on what is commonly called the “Missouri river bottoms.” Elk Creek, Avliich is a stream about 40 miles long, floAvs in a southeasterly direction through the higher lands to the north and Avest, and AAhen the raihvay Avas built discharged its Avaters upon the surface of the bottom lands at a point near the southwest corner of plaintiffs’ lands. The Elk Creek ditch, which was dug in 1886, began Avhere the creek debouched upon the bottom lands, and after its excavation the Avaters Avhich formerly were discharged on the surface of the lower lands, thus creating the SAvamp, Avere kept Avithin its banks and carried southAAard under the trestle into a creek. The ditch bottom being loAver than the adjoining land, the surface waters drained into it, and for a number of years after it was in operation it successfully drained the land of plaintiffs and others lying in the swamp. At the trial it was admitted by the plaintiffs that the trestle was originally 270 feet long, and that in 1907 it was 288 feet in length, so that it Avas slightly longer a.t the time the damage occurred than it was Avhen originally constructed. By this admission the charge of negligence in shortening the trestle Avas disposed of. These further facts seem established: That in 1885 there
The main point in controversy, and that upon which the decision as to the rights or liabilities of the respective parties must eventually in great measure rest, is whether or not the sediment which caused the partial filling of the trestle was deposited as the natural consequence of the slackening of the current of Elk Creek when it flowed from the higher lands into the ditch and the deposit under a well-known natural law of the matter held in suspension during its more rapid flow, or whether such filling was caused by the negligence of defendant.
An examination of the maps and plats in evidence and the testimony of'the engineers shows that the same phenomena have occurred with reference to the banks of the ditch as are apparent on the banks of natural streams under similar conditions. Where a stream which is heavily loaded with silt overflows its banks,'the solid material' held in suspension, when the rapidity of the current is slackened, tends to settle and be deposited. As a natural result it is almost invariable in Nebraska that the land near the channel on each side of a stream flowing through an alluvial plgin is slightly higher in elevation than that which lies farther from the stream. We are probably entitled to take judicial notice of this fact, but, whether we are or not, the testimony found in this record establishes it. The accompanying plat shows that at a point upon the half section line west of .plaintiffs’ lands where it intersects the ditch the elevation is 107.5,
The defendant contends that the waters were surface waters, as to which it owed no duty to plaintiffs; that silt was deposited all along the course of the ditch above and below the trestle by natural causes; that the resulting elevation of lands belonging to private parties lying between the right of way and the plaintiffs’ lands prevented the waters reaching the trestle, and consequently that the keeping open of the trestle would have had no effect.
At the trial the plaintiffs seem to have abandoned the theory that the original construction of the railroad embankment and trestle was negligent, and the contention .that the trestle has been shortened; in fact, it is said in their brief: “It is not claimed by the plaintiffs that their damages resulted primarily by reason of the construction of a permanent railroad grade to the north and east of the trestle in question. It is probably true that the trestle itself, when free from obstruction, was amply sufficient to provide an outlet for all waters that might come down from above, and the chief complaint of plaintiffs is with relation to the filling in of said trestle and of the right of way immediately adjacent thereto. The point that we make and insist upon is that the obstructions to the flow of the flood-waters from plaintiffs’ land existed upon the right of way of the defendant company, and that they arose by reason of the defendant’s negligence in permitting the filling up of the trestle with dirt and debris, and that the maintenance of the ditch by the county, whether proper or improper, did not cause the water to be dammed up and held on plaintiff’s land with
The court evidently did not take the same vieAV of the issues- as the plaintiffs assert in this court. It gave to the jury, in defining the issues, the allegations of the petition at great length, including the charge of negligence in, shortening the trestle, which had been eliminated, and further instructed them that “the gist of this action is the charge of negligence and the want of proper care on the part of the defendant in the construction of its trestle-bridge across Elk Creek and the openings in the embankment east thereof across what is called ‘Big Marsh,’ ” and that, to entitle plaintiffs to recover, “it must further appear from the evidence that such overflow was directly and naturally caused by the negligent and improper construction of the defendant’s trestle bridge and embankment.”
Instructions Nos. 7, 9 and 10, which are assigned as erroneous, were based upon this theory of the case. By instruction No. 7 the jury were told that “it was the duty of defendant to so construct the trestle bridge over Elk Creek and to provide openings in the embankment east thereof as to permit the passage in the channel of the creek of such quantities of water as might reasonably be expected or anticipated in ordinary years.” The ninth instruction embodies the same idea in greater detail. By the tenth instruction the jury were told that if the defendant constructed such a trestle and embankment, as stated and defined in the preceding instructions, then it Avould not be guilty of negligence and would not be liable, and that, “on the other hand, if the jury from the evidence believe that the defendant failed to exercise and employ such reasonable and proper care and skill, as stated and
In such a case as this it is a difficult matter for a trial court to state clearly the real issues. Many of the allegations of the petition were not sustained by the evidence, and it was unnecessarily lengthy and involved, so that the task for the court was needlessly harder than it Avould have been if the pleadings had truly reflected the real issues. In such a case the trial court would be justified in taking all the time necessary, even to the suspending of the trial, to give an opportunity to prepare instructions clearly presenting the true and actual issues to the jury. We believe the instructions given, predicated on the contention that the original construction of the railroad and trestle was negligent, and permitting the jury to consider and return a verdict on such an issue, were prejudicially erroneous to the defendant, as outside of the true issues, confusing and misleading in their tendency. This is. more especially so in such a case as this where the question of
Since there must be a new trial for the giving of the instructions referred to and other errors, we deem it wise to indicate our view upon some of the matters of law in dispute. By instructions given at the request of defendant, the jury were told in substance that the undisputed evidence shows that the county constructed the Elk Creek ditch and changed the course of the waters and increased the volume of the same at the place where the ditch flows under the railroad, and that it is not the duty of the defendant tp maintain the ditch, but the duty of the county to maintain the ditch and keep the same free from obstructions across the right of way; “that the defendant company cannot be held liable in this case on account of obstructions in the channel of the Elk Creek ditch, for the reason that there is no duty in the law on the defendant to keep said ditch free from obstructions, and the defendant company could only be made liable in case it wilfully placed obstructions in the channel of said ditch in such a manner as to obstruct the free flow of the water therein and cause the water to overflow its banks.” By other instructions the jury were told “that the defendant is not. liable on account of any fill under its trestle which was caused by the natural overflow of the Elk Creek ditch;” and, further, that, “if such flood Avaters caused a deposit of silt and sediment under the railway trestle in question
Do these latter instructions state the law correctly? Was the defendant under any duty, after the ditch was dug and these flood-waters concentrated at and above the trestle, to keep the trestle free from obstructions? If the ditch had been a natural watercourse it would have been its duty to keep and maintain a passageway for the waters which might reasonably be anticipated to flow therein, both while in the channel and while in flood. When Elk Creek was in fact extended under the trestle, did the same duty attach? This was a county ditch, established under the drainage statutes, and, if any additional duties or obligations Avere imposed upon the defendant by its construction, they were presumably taken into account in estimating benefits or damages when the proceedings to establish the ditch were had. The new channel had been in use for nearly 20 years in 1906. While we believe it to be the duty of the county to keep the channel of the ditch clear, we are also of the opinion that the change in the channel imposed the liability on the defendant to keep its trestle unobstructed to the same extent as if it were a natural stream at that point. Of course; this does not mean that defendant must clear away a general deposit of sediment above the trestle, unless the deposit is caused by a negligent failure to maintain a proper passageway thereunder for the loaded waters; for, if the deposit would have taken place even if the lands had been in their natural state unencumbered by the railway and trestle, the defendant is clearly not responsible for the silting, and not liable for any damages caused thereby. A number of the instructions given at the request of the defendant are inconsistent with this view of the law, and should not be given on a. new trial.
As to the measure of damages: If the deposit was oc
Defendant also complains that the plaintiffs were permitted to amend their reply so as to allege an agreement by one Hill, defendant’s claim agent, made in 1906, after the flood of that year, that the defendant would promptly replace a portion of the trestle with a steel span about 60 feet long, and would ditch and otherwise prepare the land north of the trestle so as to properly drain the plaintiffs’ lands, and that in planting the crops in 1907 and 1908 they relied upon this agreement. This amendment was intended as a defense to the allegations of the answer that when these crops were planted the plaintiffs knew the condition of affairs and took the risk. The testimony of Mr. Gray substantially corresponds with this allegation, although the promise is denied by Mr. Hill. We believe the testimony as to the promise to open the waterway and. ditches so as to drain the land was connected with the subject with which Hill was authorized to deal, and was properly admissible as excusing the plaintiffs for planting the crops as conditions then existed, and, of course, in proving this the whole statement was narrated. It was
In this connection certain correspondence was received over defendant’s objection, ostensibly for the purpose of showing a ratification by the defendant of the alleged promise by its agent Hill to erect a new steel span. Exhibit 35 is a letter from Gray to the claim agent describing the flood, making a claim for damages and giving his idea of the cause. It makes no reference to any agreement for a new bridge. Exhibits 36, 37 and 38 merely acknowledge the receipt of the letters by Gray. Exhibit 10 promises an investigation, and says: “If we find that any of this damage is due to lack of waterway, the necessary steps will be taken to remedy the trouble.” The remaining letters throw no further light upon the agreement and ratification than do those mentioned. We cannot see that they afford evidence of ratification of the alleged promise made by Hill, and think they should not have been admitted in evidence.
Defendant insists that the evidence of the engineers produced by it as witnesses and also the elevations shown on the various plats introduced by both plaintiffs and defendant conclusively established that obstructions of the trestle were not the proximate cause of the injuries, and that the court should liave directed a verdict in its favor. We find, however, testimony on behalf of plaintiffs to the contrary by the witness Johnson, who also is an engineer, and by other witnesses. While we might have taken a different idea had we tried the question, we believe there is sufficient evidence to warrant the submission of the real issues to a jury. If a new trial is had, the issues should be-narrowed and clearly presented both in the pleadings and instructions. We feel it our duty to repeat wha.t has frequently been said by this court, that instructions should reflect the real issues, and that if the evidence clearly fails to sustain an issue, or if either party virtually abandons
What has been said with reference to the main question being whether or not obstructions to the flow of water through the trestle negligently made caused the damage is not intended to mean that other questions involved which we have not mentioned may not properly be issues in the case. It is impossible, with due regard to the right of other litigants, to extend this opinion so far as to cover every point involved.
The judgment of the district court is reversed and- the cause remanded.
Reversed.