103 S.W. 709 | Tex. App. | 1907
Appellee, in his third amended petition claims to be the owner of 100 acres of land on Cottonwood Creek, and that in December, 1902, the railway company constructed along the east side of Cottonwood Creek and nearly parallel with the creek for a distance of about 240 feet, and just east of the land of appellee, a dump about 24 feet high; which, it is alleged, by reason of the careless and negligent manner of construction, slumped into the creek, damming up the same. And that appellant also, by reason of a ditch it had constructed, diverted the water so as to cause it to enter the creek above the dam which otherwise would have entered below the same; that by reason of the matters stated about 25 acres of land belonging to appellee was caused to overflow from ordinary rains, and that in April, 1904, and in April, 1905, by reason of these obstructions, appellee's crops to the value of $750, were destroyed; that his land has been washed in holes and hollows and permanently damaged to the extent of $1,000; that the dump, embankment, ditch and obstructions in the channel of the creek were permanent and lasting in their nature; and asked for damages as above stated and an injunction perpetually restraining the further continuation of these obstructions.
The case was tried before a jury and submitted to them on special issues and verdict rendered for appellee in the sum of $853.20 damages, and judgment was rendered perpetually restraining and enjoining the appellant from obstructing the flow of Cottonwood Creek.
Appellant's first and second assignments of error complain of the action of the court in overruling demurrers. These assignments present no reversible error.
Appellant's 3rd, 4th, 5th, 6th, 7th, 8th, 10th and 12th assignments of error will be considered together. These assignments substantially raise the question that the court erred in not submitting to the jury special instructions requested to the effect that if the waters would have overflowed the plaintiff's land and caused the damage complained of, regardless of the obstructions, then the plaintiff could not recover. Also that the railway company would not be responsible for such damages resulting from the overflow which were not caused by the obstructions; and in such case the damages to be charged to the appellant would be limited to what resulted from the obstructions. The principles of law embraced in these charges is recognized in the cases of San Antonio A. P. Ry. v. Kiersey,
While it is true that the case was submitted upon special issues limiting the plaintiff's right of recovery to what might have resulted from ordinary rainfalls, still there is evidence in the record which tends to show that the overflow in question possibly covered the *30 plaintiff's land, and might have occasioned the damage, independent of the obstructions to the stream complained of by the plaintiff. Some of the charges presented by appellant, and which were refused, are not properly framed; but some present the issue in a general way, and some are so presented as to require a special finding of the jury upon the questions to be submitted; and we think, in view of the facts, it was the right of the appellant to have these questions passed upon by the jury. We do not understand that because a case may be submitted upon special issues, that a party is deprived of the right and privilege to have the jury's attention affirmatively called to an issue asserted by him which has some evidence to support it. We think it was error for the court to decline to submit the issues above outlined.
Appellant's 13th assignment of error is as follows: "The court erred in refusing the 16th special issue asked by defendant to the following effect, 'If you should find any damage to the crop of 1905, you are instructed that if the rainfall in May was an extraordinary rainfall, then the damages, if any, caused by said April rains, if any, should be eliminated from the calculation in estimating the amount thereof. If said crops would have been destroyed by said rainfalls in May anyway, then defendant would not be liable therefor.' " While this charge is not correctly framed, but having reversed the case we call attention to the question raised, so that it may be considered if properly presented on another trial. The charge undertakes to exonerate the defendant on account of extraordinary rainfall. This is not the law. The rainfall must not only be extraordinary, but one that could not, in the exercise of ordinary care, have been foreseen or anticipated. If a charge upon another trial is correctly framed, then we think that the principle to some extent embraced in this instruction should be submitted. Of course, it is true that the plaintiff would be entitled to the value of the crop at the time it was destroyed, independent of what might have subsequently occurred that may have resulted in a destruction. But, while it is true the plaintiff is entitled to recover the value of the crop at the time it is destroyed, if there was a recent subsequent event, for which the appellant would not have been liable, and which would have resulted in the destruction of the crop, the plaintiff's measure of damages would have been limited to what was the value of the crop at the time it was destroyed.
The courts have ruled that, in determining the measure of damages for the destruction of growing crops, the market value at the time of destruction is the rule. Gulf, Colorado Santa Fe Ry. Co. v. Nicholson, 25 S.W. Rep., 54; International G. N. Ry. v. Pape,
What we have just said, in connection with the cases cited, substantially disposes of the fourteenth assignment of error. We are of the opinion that the testimony there stated is admissible. It possibly should have gone further and shown what might have been the probable yield. The cases cited lay down the rule with reference to the measure of damages and the character of evidence admissible.
We are of the opinion that the evidence of the witness Longseere, which the court refused to admit, and which ruling is complained of in the 16th assignment of error, was admissible. The objections urged to it merely went to the weight of the testimony and not to its admissibility.
We pretermit a discussion of those assignments which raise questions of fact. We have pointed out what we consider to be the reversible errors in the record.
Reversed and remanded.