*1 Railway v. Co. Jones 1903. v. AIR RY. CO. SEABOARD LINE
JONES Highways — — — — Bridges 1. Streams Railroads Waters— Freshet Damages. right navigable owner of land stream has the —The on a may bank, to the unmolested maintain an use of the same to -the against company causing damages action t'o same railroad for piers obstructing by negligent of construction flow freshet waters distinguished C., bridge. R., for Co. v. R. Steamboat this. op Bridges Railroads—Damages—Deeds—Right Way. 2. — —Grantor company way right to a railroad of a must be held to had have damage resulting property reasonably in view all t'o his from a skil- proper bridge; ful and construction of a but not from its construc- thought company tion in manner best if construction was unreasonable, angle and not the to the course of the water at built; were afterwards but in case which of construction injury proves with reasonable care which defective and causes to duty company grantor, use skill to is reasonable care and injury injury grantor, prevent and it is for so occasioned. liable company consolidating an- 3. Railroads —Nuisance.—A damages nuis- from a of this is liable other under the laws State company the consolidated the first and continued ance erected removal. without notice demand for Highways Streams—Bridges.-—Precautions required of and liabil- — 4. persons building bridges streams, ity across stated. banks, a river out of its
5. waters Sureace Water. —Freshet return, is not surface water. will Opinion. Evidence—Expert Bridges—Freshet Waters — 6. Streams — give opinion effect of or dams cannot an as to —A witness particular point he is shown in a river unless at a freshet waters subject at special knowledge the conditions and of on the point. Charge Requests.—It duty Judge charge or refuse of trial
7. — requests charge submitted. proving affirmative defense that 8. burden Evidence. —The by unprecedented damage to lands was caused floods is on defend- ant. Damages—Bridges.—Railroad such is liable for 9. Railroads — by unprecedented not have floods as would to lands caused bridge. except negligent of its construction occurred December, Kershaw, special Judge,
Before Izlar., Affirmed. Jones
Exceptions. S. C. Action by Wiley Jones, Oliver P. L. Jno. J. *2 Air against Seaboard From Railway. Line judgment Jones for defendant plaintiff, on the appeals exceptions: foilwing
“1. Because the upon Honor, motion for nonsuit his the should have taken presiding Judge, judicial cognizance the fact of that the stream, Wateree River is a so navigable the declared- act of by and should have held obstruction, if unlawful, nuisance, would constitute a public that and no action could be maintained the plaintiffs, whose injuries, differ in alleged, and not in degree only, kind, from stream; those of others the along and should have the nonsuit. granted
“2. Because the upon nonsuit, motion for a it being the that proof by plaintiffs’ of testimony right way for valuable granted consideration them- plaintiffs to the selves Bound Railroad South for track Company his Honor bridge, should have held that the law pre- that sumes they, plaintiffs, contemplated of right said to erect its manner piers it bridges best, unusual, provided was not thought and should have held that the so having conveyed right way, are held to have known the use that was to be made of it and river, which the should cross the angle and to have assumed all risks incident to the location of the piers usual such for and there way no bridge, being show that were located in an unusual piers angle river, current of the his Honor should have granted nonsuit.
“3. Because the motion for a upon nonsuit it appears cribs stream were alleged to have proven been built Bound Railroad Co. and abandoned. South His Honor should have held that the defendant could not be held for the such consequences remain allowing on its until after way demand removal and right refusal, of which there was neither nor allegation proof, Honor should nonsuit. granted the motion for a
“4. Because nonsuit it upon appears Raieway the piers themselves were erected Bound Rail- South Co., road his Honor should have held that the defendant could not be held them consequences allowing remain on its after right way demand for removal until refusal, and of which there was neither nor allegation and his proof, Honor should the nonsuit. granted hav.e “5. Because upon motion for.a nonsuit his Honor should have held that flood waters considered a common and the defendant enemy, could not held liable for dam- from the erection ages resulting at such angle as did not result in the diversion of the water in the channel stream, if even cause a did diversion of the water floods, at unusual heights should have granted, *3 nonsuit.
“6. Because the witness, examination the upon B. B. Williams, in of the behalf defendant the upon objection of the his Honor the plaintiff, refused, allow witness to the as to erosions the testify response question above follows, as to wit: ‘To what extent are these bridge ero- sions ?’ The said intended to question show the being freshets to have which caused the alleged damage lands had caused similar above the plaintiffs’ therefore, that the action of the river the below bridge; affected the had not been or cribs. bridge by piers witness, F. Because examination of H. upon “7. defendant, Barber, offered on behalf of upon objection his Honor refused to the witness to of the allow plaintiffs, 1901, on the as to the effect of the of May, testify freshet River in lands Catawba York County, bottom along the same stream as the River Wateree being said Catawba it River, it the same freshet which being alleged lands in Kershaw damage plaintiffs’ had caused County. F. H. witness, the examination of the Because upon
“8. defendant, Barber, upon objection on behalf Honor, the refused to allow presiding Judge, plaintiffs, his means witness, had stated and of knowledge who Co,
Exceptions. S. C. to- forming opinion, to the testify response question, think the you water on that was thrown land by ‘Do obstruction afforded piers?’ follows,
“9. Because his Honor as charged jury wit: ‘One whose lands are and injured overflowed sand, reason of timber and trees and carried uprooted thereon, of the manner in a railroad in-consequence river, builds across natural stream or company bridge the waters of the whereby stream are contracted and di- their natural course, verted from channel or and made to flow the different direction from that which were accustomed to do- before building thereof, stream obstruction of the allow- other obstructions built for ing permitting temporary to- remain in the river and further obstruct the purposes waters; rail- flow maintain an action such may ag-ainst sustained, for the injuries road which he has as company stream, to know the habits of the presumed occasions, occasions;’ well extraordinary ordinary that, even the railroad thereby indicating though authorized under the laws of the been company might even United to build such bridge, State States to-erect in the bed of though might necessary stream, erected, and even were though they properly have his *4 injured landowner would thereby unavoidably cause of action.
“10. Because his Honor follows, the as charged to jury ‘If the wit: here injury complained was caused an freshet, which could not extraordinary be foreseen and pro- words, vided God, other was the act of against and such —in the act sole cause-of the was the injury of the proof —then shield, fact would be a perfect and the plaintiffs could not if recover. But the find the from that jury there defendant, o-nthe part which, was if negligence it had not been not present, injury would have not- happened, the act of God in an withstanding sending extraordinary in the Wateree River, freshet defendant would be responsible; and burden is show, on the defendant to not that the only or, words, in other extraordinary freshet — cause, act of God—was the that but it the entire cause. was For as said in one of our “It cases, is the act of only when God is the entire shielded,’ cause” that the defendant can be thereby that the indicating burden of was on the proof show, defendant to not that the freshet only extraordinary cause, was the that it cause, was the entire injury lands; whereas, plaintiffs’ submits, defendant it being as to only question what was the cause of and not a injury question of the defendant from exemption some duty or contract, him law obligation imposed upon burden was the plaintiffs to show that the injury (cid:127)caused of defendant act negligence God.
“11. Because his Honor follows, charged as jury wit: ‘The same as principle, case, decided in that is applicable onus, then, here. The upon defendant to prove the absence of unless, as I negligence, charged you, satisfies proof minds that the your act of God in sending freshet extraordinary was the entire cause of the injury lands, plaintiffs’ which, if so, would, course, itself show absence of negligence,’ thereby indicating burden of proof defendant, when, on the as claimed in preceding exception, was on the plaintiffs.
“IS. Because his Honor follows, charged ‘A railroad wit: company road over a constructing stream, natural course, natural water should have openings sufficient to afford a free outlet or water, for all passage well in times of freshets or floods and freshets as at ordinary times, other and the railroad is not liable only to persons injured obstructions in a -by placed maintained, natural water course and there or there negli- remain, allowed but also for gently damages resulting stream,’ the natural course of the diverting thereby defendant would be liable not indicating *5 caused obstructions or main- damages negligently placed
Exceptions. C.S. stream, tained in the also for from damages resulting unavoidable natural course the stream. diverting
“13. Because follows, his Honor as charged jury wit: the railroad ‘Although constructed company its. and and in a scientific if the bridge prudently manner, yet, satisfies minds that it your subsequently appeared that construction was such that result would damages from the and the railroad could bridge piers, company effort, averted reasonable nevertheless damage by so, would, liable,’ failed to do be my opinion, thereby that the defendant would be liable for indicating damages from the its construction of resulting bridge, the same were constructed and in a although prudently manner, scientific where it subsequently appeared construction was such that would result from the. piers. follows,
“14. Because his Honor charged jury law, ‘A railroad as I is wit: understand the bound company, in the its all construction of road provide against injury It from floods and freshets. .ordinary and damages arising relieved from its when it is shown that the only liability freshet an unusual or one—in extraordinary flood or was words, that it the act of act which could other was God'—-an anticipated provided thereby not have been against,’ the railroad warrantor company indicating all floods and damages arising ordinary against it is freshets, could be relieved from when liability freshet the act that the flood or of God. shown follows, “15. Because his Honor charged suffers a nuisance to if the railroad be company ‘But wit: it on its busi- premises, pursuit created or continue has the such railroad benefit, company its when ness for it, it would be liable for any abate prevent power therefrom,’ indicating injury resulting thereb}'- liable to an individual injured would premises predecessor a nuisance placed *6 Railway v. Co. Jones there,
allowed to remain no demand although for removal was made or refused.
“16. Because follows, his Honor as to charged jury wit: Now I have been both requested sides to charge certain you both for the requests, and the plaintiffs defend- ant. You have heard these read. I requests have given in you my general what I consider to in charge be the law case; and in far as SO' submitted requests plaintiffs the defendant are consistent with my. general I them to charge, charge you, those which inconsist- ent and conflict with I my refuse general charge, to charge to them you;’ it to the to determine for thereby leaving themselves whether the to requests- charge submitted by and the plaintiffs defendant were consistent as a matter with the Honor, law delivered charge de- and the fendant submits had to have its legal right requests to stated to the have it charge to stated jury, whether were allowed or not. they
“17. Because his Honor to refused defendants’ charge second as request charge follows, to wit: ‘That the effect two deeds introduced evidence of them objection, without' one P. Wylie Jones, Oliver and N. Bound Com- Railroad South Jones J. Jones the other from K. to the same was pany, company, J. Jones to to said Bound Railroad all of convey Company South estate said land which had of them strips they any of said railroad purposes company.’ “18. Because his Honor refused to defendants’ charge follows, wit: ‘That per- third to when request charge sons for to a valuable consideration of land strip convey a track and purpose building it, are held to have all contemplated bridge damages their result the remainder of might property by manner, in a re- proper built usual cannot bridge from a for injuries cover so built.’ resulting “19. Because his Honor refused to defendants’ charge follows, wit: ‘That the request charge plain- fourth S. C.
Exceptions. tiffs do Railroad allege Company South Bound the four for its constructing permanent bridge this, careless in negligent and that it located said the broad at such sides thereof to the natu- oblique angle ral course of stream as a much surface present greater and obstruction to the current of the stream than neces- *7 or the sary denied proper, allegation being by answer, the are a bound to plaintiffs by preponderance prove the to of it was or so not testimony necessary proper locate said piers.’
“20. his Honor Because refused to defendants’ charge follows, fifth as ‘That to to to establish request charge wit: such an the must under negligence allegation, plaintiffs prove a of the that such location was preponderance by not not that the of necessary .proper, danger to the such a result as is to have known alleged happened so of the or company building bridge, agents that a reasonable man would foreseen apparent result.’ his defendant’s charge
“21. Because Honor refused to a follows, as ‘That when sixth to to wit: request charge a land to railroad com- who has conveyed strip party track and knows for the bridg'e, pany building freshets, and character river and the dangers such building bridge is present piers during the current of at to they placed sees the which angle to as the river, is as parties building much bound such location apparent his own lands from foresee to dangers building should warn so men, parties to reasonable to to do and allows if he fails so piers, heavy and to incur with the of such building proceed thereon, he cannot claim dam- a bridge expense building therefrom.’ subsequently resulting from injuries ages refused to his Honor defendant’s charge, “22. Because ‘That follows, as to wit: the agents to request charge seventh in the location of piers for engaged railroad company aof are not bound to the effects anticipate a river across' which result from such location on an unprecedented would freshet, is considered the act of God.’
“23. Because his defendant’s Honor refused charge follows, ‘That if a wash wit: eighth request charge across the on land was commenced plaintiffs’ by bank freshet and widened and deep- unprecedented subsequently freshets, ened other and-the resulting alleged damage therefrom, for such and would not have occurred but unpre- freshet, the not recover in this cedented could plaintiffs action.’
“2d. Because Honor refused to the defendant’s charge follows, ninth ‘That if request wit: charge that the believe lands was started washing plaintiffs^ banks, or the trampling hauling handling thereon, or other material or logs clearing, banks, for the thereof cutting bridge, therefrom, lands resulted can- plaintiffs’ and the not find for burden plaintiffs, *8 of the evidence that such wash-
to prove by preponderance such was not so started and not caused damages thereby.’ ing “25. Because his Honor refused to defendants’ charge follows, ‘That it is as to wit: tenth request charge that of complaint original building alleged or improper, for temporary bridge unnecessary cribs must assume such and the building rightful, prove by preponderance must plaintiff ceased to be necessary proper, when resulted thereto.’ damages subsequently alleged his Honor refused to' the defendant’s charge “26. Because follows, as to wit: ‘That when charge eleventh request into a stream one put navigable corpo- rightfully cribs-are become demand for a unnecessary, and subsequently ration a failure so-to do’must thereof and be alleged removal corporation succeeding rights before proven can held first liable for dam- corporation liabilities of such cribs in the river.’ presence from resulting ages refused to his Honor defendant’s charge Because “27.
190 Argument of Counsel. S. C. twelfth request follows, to- charge to wit: ‘That waters of an unprecedented freshet are considered common and a enemy, cannot be held responsible for not having such a anticipated freshet or not having pro- tected lands from the adjoining effects thereof.’
“28. Because his Honor refused to- defendant’s charge thirteenth request follows, charge to wit: ‘That plain- tiffs cannot recover action for in.this to- damages growing on crops the land in question N. belonged J. ” Jones.’ Messrs. H.W. Lyles Shannon, M.W. for appellant. Mr. Lyles cites: Consideration is right way presumed of to cover all C., 485; damages: 363. No 111., 47 111 S. notice or demand removal: 47 C., 464. Unprece- S. dented God, is act and burden showing damage freshet by construction C., 29 plaintiff: S. therefrom Thom, 101; 584; 1 2 ed., E-, 409; Rich. Ency., 7 on Neg., 72; 441; sec. 10 E. R., 476; 36 Mo. St., 65; 96 Pa. App., 67 Cal., 607. Moore, Kirkland, T.
Messrs. I. M. and C. C. L. Smith contra. Mr. Kirkland cites: set de- having, up Defendant God, act burden is on it: unprecedented freshet, fense C., 279; C., C., 96; ed., 592; 1 2 52 29 26 Ency., S. S. S. is liable 258. obstructing Defendant vaater course without construction: negligent reference 2041; P., 226; Code, 1902, Id., 336; 21 P. Ency. & 34 C., 62; C., 469, 485; C., S. S. *9 action: 30 Mr. cites: Plaintiffs maintain this may Smith S.' 495; C., Hill, 365; Rich., 583; C., C., 539; 1 5 21 54 S. S. As to 242; ed., 714-5; C., 120. liability 21 2 64 Ency., S. 484; C., the obstruction: 47 continuing S. for of defendant notice and demand And no la., C., 24. 170; 25 55 S. for C., 587; C., 464; 16 52 necessary: are 47 removal S. S. S. C., 357; 801-2; 98; 58 6 62 E. C., 404; C., Ency., 54 S. S. Railway 191 1903. R., 678; Code, 1902, 2053; C., 64 92; Mass., ; 566 21 S. 178 2041; 721; Code, 1902, C., 56 534; C., 568; Ency., 63 S. S. 896; C., 61 Ency.,
24 552. Is S. water freshet surface 472; C.', C., 242; 39 C., 25, 62; water? 54 62 S. 86 N. S. S. 140; 903; C., 24 Y., 120; 63 Ency., 40 582. St.,O. S- Evi- dence offered ffood at other damages points properly Tex., 279; C., 716-7; 129; excluded: 78 13 32 Ency., 59 S. 311; 62 C., C., 281. S. liable S. negligent Defendant for C., 23; Miss., 28 67 28.
maintenance: Plaintiffs to take notice method 1 construction: required Ency., 75; ed., ed., Ency., 21, 1903. The of the was deliv- July Court opinion ered by The Com- Bound Railroad South Mr. Woods. Justice from Camden building road to Columbia con-
pany structed across the River at temporary Wateree Camden, and replaced with a subsequently permanent stone a deed bridge resting piers. plaintiffs made' to the railroad their over lands right way In to the river. Bound Company South Railroad into the Air consoli- merged bjr Railway Seaboard Line This action is Air brought dation. against Seaboard and injunction. The grounds .Line are, defendant has complaint negligently remain in the river allowed to and obstruct it a number of cribs, rock, or filled used were large pens and which are useless building temporary bridge now defendant; Bound Railroad Company South constructed the stone permanent negligently them at and that it located so angle oblique bridge, as to the natural flow stream a much present greater surface and obstruction to current'than is necessary From these two causes the plaintiffs claim the proper. flood the river has deflected water of been from its natural flow than much more its.natural and thrown with force and vol- lands, banks, their adjacent tearing ume on down the scour- *10 Railway Co. v. Jones C.
Opinion of the Court. soil, sand and their with off and covering ing excavating silt, thereon, subjecting their and and crops destroying grass an increased force of their land to such valuable bottom a almost worth- as to-render part current in floods ordinary unsafe and less available remainder much more less of agriculture, and other purposes planting, pasturage in the defendant $2,000. their Plaintiffs alleged damage Bound Railroad Company consolidating South liabilities, this the answer all its assumed duties charged, admits. The defendant denies negligence it are which support the railroad alleges manner, not have and could in a correct and scientific built sets The defendant up other manner. been built if any, alleged by that the damage, defense and unusually high the unusually frequent caused by At the conclusion River. freshets Wateree for a defendant moved offered testimony plaintiffs, the case proceeded refused and The motion was nonsuit. $1,000, and the plaintiffs found for its close. ju,ry of exceptions, assigning a number appeals upon defendant nonsuit, in the admission of the refusal to error in grant to the jury. in the charge testimony, for a the motion first consider the grounds shall We as follows: nonsuit, claim It is clear that no “1. growing allowed, as it is shown the land is culti- can be crops N. Jones, plain- and the owned crops vated J. tiffs. judicial take of the fact cognizance
“2. The Court will is a stream. It made navigable that the Wateree River act of 1753. such by one, obstructions, navigable The stream being
“3. nuisance, unlawful, constitute and no public if would injuries whose plaintiffs, can be maintained action and not in kind from those differ degree as alleged stream. others along by plaintiffs’ right It is proof “4. *11 the to of themselves way South granted by and the Bound Railroad for its track and Company bridge, law said com- of presumes contemplated right they that it to in manner erect pany piers bridge it unusual. best, that was not provided thought “5. so of Having way, plaintiffs conveyed right held to to made of and the have known the use be river, at would have cross angle risk assumed all incident to location piers usual such way bridge.
“6. There is no testimony to show that the tending piers in were located an unusual manner or at an unusual angle current of river. “7. in The cribs the stream are to have proven alleged been Bound Railroad built aban- Company South doned, and the defendant cannot held for the be conse- of them to remain on its quences of allowing right way until refusal, after demand for removal and there of which is neither nor allegation proof.
“8. The themselves been erected having Bound South .Railroad Company, defendant cannot be held for the of consequences them to remain allowing on its until right after demand way refusal, for removal and of which there is neither allegation or proof.
“9. Flood waters are considered a common enemy, the defendant cannot be held liable damages resulting from the erection of the at such not angle did result diversion of the channel stream, waters even if did cause a at diversion unusual heights floods.”
The nonsuit could be the first granted ground there was because evidence to show to the tending damage land as well as the has crops. owner Every riparian rights stream, to a respect addition to navigable his
1 in common with the right public unobstructed One these is
navigation. free right access to the stream lands and over own the undisturbed
13—67
194 v.
Opinion of the Court. S. C. Wall., 497; use these v. Milwaukee, lands. Yates 10 St. Rutz, S., 246; Mendenhall, v. 138 U. Miller v. 43 Louis ; Minn., 95 v. R. Rep., Am. R. (19 note) Rumsey St. Wis., Y., 79; 288; 133 N. Jonesville v. Co., Carpenter, Law, This has been de Am. & Eng. Ency. right it is courts, some sustained nied but great weight however, to It is authority. subject, right it cannot improve develop navigation, State for their companies corporate purposes impaired by compensation Mayor, without owner. Sage N. 61. The which the the defendant Y., plaintiff says right *12 of not the other any right invaded was right navigation, he held but public, right which in common with the banks of river. use of land on unimpaired affect was does not The fact the stream navigable Decis., 61 446. v. Co. Am. R. R. question. (Mass.), Blood is different in and kind from any The injury alleged degree and, therefore, does not fall within the the public, done to E., Co., C., 539, 9 v. R. 30 of Co. R. S. reason S. Steamboat cases. For these reasons defendant’s 650, and other like of cannot sustained. and third nonsuit be second grounds fourth, sixth will considered fifth and be The grounds a a right The deed plaintiffs, giving together. all lands, must be held to had view their over way a to their property reasonably damage coming Wal bridge. construction 2 skillful and proper E., 66, ; S. Co., C., S. 34 12 815 v. R. Leitzsey lace R. E., 744; S. C., S. 25 Nunna Co., 47 v. Power Water E., C., 487, S. Power Co., S. 25 751. 47 v. maker Water that the con for the authority proposition of no We know the railroad company authorized way right veyance if best, manner thought bridge build is, was unusual. The question not construction method of circumstances, such as the all the into consideration taking etc., was river, country, the topography current of precau skill reasonable built with reaspnable the bridge this issue there others? Upon avoid injury tion to 195 v. 1903. evidence offered for the consideration of the jury.
true found, criterion is not in the skill prudence and that are exercised, usually but in that which ought to be exercised. v. R. Co., R.
Bridger C., 30; Co., S. Mills Cooper Iowa, In Co., the recent case of Bodie v. Ry. C., 302, which was an action brought against company by employee injury from in fail- negligence ure to furnish a force of requisite work, hands to do special this Court decided that it was competent to show the usual method on that and other roads work, the same doing was admissible on the solely that it ground furnished some as to proof what method of proper work, such doing the standard of fixing care exercised in its performance. Though not involved in nonsuit, the motion for it is proper consider in this con- nection the stated proposition in his presiding Judge forms charge, thirteenth ground exception: the railroad “Although company constructed manner, and in prudently scientific if the testi- bridge yet, minds that it satisfies mony your subsequently appeared the construction was such that would result from and the railroad could have piers, *13 effort, averted reasonable nevertheless failed damage by would, so, in my to do it be liable.” This opinion, obliga- duty from the all imposed upon tion flows to so use their as not others. injure own to with the exer- property Even care and skill in the cise of the utmost construction drains, culverts, dams and mistakes be great may bridges, made, reason of which unexpected and are sometimes by In such a it fair results to others. case is and just injury make the mistake should be after it that those who required, manifest, to use reasonable care and skill to has pre- become others, on when especially consequences falling they vent its to use reasonable care and skill in the required were only Idem., 940; Am. & 13 Ency., 4 692. Eng. construction. must held as a matter plaintiffs taken that
The position which the the at railroad would angle have known of law 196 v. C. S.
Opinion the Court. water, is and of the cross the stream the position the intention knew proof plaintiffs not Actual sound. the deed made respect of the railroad in this when a who conveys have defense. One would been strong however, not, is charged, way right the with exception, insists in the twenty-first as defendant enable him warn skill requisite knowledge in construction used that the methods builder bridge this, the and safe. Aside is not proper nonsuit this ground motion for defendant pressing could of rocks. It certainly of the cribs or pens loses sight antici- had reason to that the plaintiffs contended not be left these would be river. pate seventh motion involve eighth grounds The that both the and the erected cribs were proposition defendant, Bound Railroad by Company, South Air held cannot be Railway, Seaboard Line them to remain as they 3 consequences allowing were left the former until demand for corporation refusal, of which no was offered. proof removal line of authority doctrine established unbroken of the nuisance must who is not creator original party it and be to remove before action requested notice of Co., R. 16 him. Hammond v. R. brought against can be S. E., 404, C., 567; Council, C., v. 29 Townes S. S. City E., 464, Co., C., 851; Power Water Leitzsey S. however, doctrine, to the case This does apply After forth liabilities setting under consideration. now them, Bound Railroad Company incurred South : ninth allege, paragraph complaint A. D. May, on or day “That about thereunto au Air Railway, being aforesaid Line Seaboard Carolina, con laws of did merge thorized South stock, franchises those property capital solidate *14 Railroad Company, Bound forming of the South thereb}' under the name laws Carolina by corporation new South herein, the defendant becom- Railway, Air Line Seaboard Term; of the franchises subject owner ing property all the duties and liabilities of the said Bound Rail- South road and a under laws of Company, corporation South Carolina, are informed and This believe.” admitted the answer without allegation qualification.
The admission must referred of the be liabilities South (cid:127) Bound Railroad Company complaint, alleged shuts off the defendant from clearly anything asserting to the liabilities of the Bound Railroad Com- respect South which that not itself set This pany, up. could company made, admission was because case of consoli- properly the statute the new imposes dation law upon State debts, “all liabilities and duties” of company any company ghall consolidation, that they entering provides same extent as if enforced “to the new against debts, and duties had been incurred or con- said liabilities tracted it.”
Perusal of evidence offered leads to the by plaintiffs in 1901 clear that and 19OS the floods in the conviction River Wateree were unusually unusually frequent. great however, effect, There was floods, floods under feet were not unusual thirty that resulted to- land from water damage plaintiffs’ it thrown and cribs when the floods were upon instance, as, in the freshet below of Febru- height,- OS, Besides, feet. when water was ary, twenty-eight it is not sufficient to the defendant from liability exempt should have come from diversion water damage The rule is that whoever at “unusual of floods.” heights stream, over before placing build proposes or-other erection to dam tending any degree flow, water or divert from its natural must study flows, which it freshets, its usual country through and occa- floods, sional great usual but which experience time, teaches occur at and use may reasonable care and skill to avoid producing increasing damage these He sources. is not required to anticipate and use
198 Railway Co. v. Jones
Opinion of the Court. S. C. precautions or floods. against extraordinary unprecedented Whether a falls flood within one or the other of these classes fact, is a there is evi question where any conflicting dence the issue can v. be decided Co. by jury. Ry. Ill., 127, note; 366; Millman, 143 Am. 13 Am. & Rep., St. 690; note; Gilleland, Pa., 445, R. R. Co. v. 56 Eng. Ency., Am. It evi Decis., 94 106. cannot there was be doubted for the on this dence question. discussion, under
No of surface water seems necessary case; since has referred subject the facts of been it to in be well to flood water may say argument, water, spread a river is not surface although usually Easements, 5’ lands. adjacent out over Jones sec. The test is thus stated in 13 Am. & Eng. 729. the water from overflow 687: “Whether Ency., as still water course part streams to be considered .the water, surface is the of diverse subject or to treated as bu,t rule has been the most satisfactory opinions; makes its character depend upon configuration evolved after it and the relative water position of the country If water the usual channel. the flood be- has beyond gone leaves the same the main current or comes severed from return, out over lower spreads ground, never to water. But if it forms continuous body surface becomes channel, if it de- ordinary water flowing return, recession such channel presently parts as still a of the waters, part it is to be regarded if in this case water be regarded stream.” Even one water, this could not avail defendant. Though surface a natural stream surface water into to empty has the right he is not -allowed the lands of neighbor, flowing through artificial means and throw it on water by collect surface C., v. Seigler, lands of another. S. Brandenburg E., 790. stated, think the nonsuit was properly reasons we -For first, discussion disposes foregoing refused. Rep.J
second, third, fourth, fifth, thirteenth, fifteenth, twenty-first and twenty-sixth grounds appeal.
Upon examination of the evidence it will be apparent the Court although did exclude an answer to the question *16 Williams, asked B. B. “To what extent are there erosions?” yet a full subsequently account gave .witness the nature and extent of the witness, erosions. The Barber, F. H. was not allowed to testify effects of freshets on the bottom lands the same river along in York afterwards, County; stated that he knew having the effects of freshets not in York only but all County along river, he was allowed to in detail the results give of his observations. This witness was asked the “Do question, think the water was you thrown on that land obstruc- tion afforded by piers?” Upon he objection, was not allowed to It give opinion. had not been proven the witness had any special of the effect on the knowledge water of such cribs, obstructions as the or even that he was familiar especially river at the bridge. was,
His therefore, opinion sixth, not admissible. The seventh and eighth exceptions are overruled.
As to the requests charge, said to presiding Judge I jury: “Now have been both requested by sides to certain charge you both for the requests, and the plaintiffs defendant. You have heard these I read. requests have I given you my general what consider charge case; to be law in this and in so far as the re- quests, defendant, submitted and the consistent with I them my general charge, charge you, and those which are inconsistent and conflict with my I refuse to them to The general charge, charge you.” defendant was entitled to presiding Judge charge its refuse benefit could requests. come to defend- Little ant from submitted to the having requests submitted, were. As the were not requests properly we refused, treat them as must and the defendant will be en- titled to a new trial under the sixteenth unless the exception,
Opinion C. of tlie Court. in defendant’s requests, sound of law embraced propositions issues, substantially so material to the had been already resulted that it is no apparent injury covered charge and defendant’s from the refusal. In this view charge be considered. requests will com- in which defendant
In the exceptions considering the principle excluded from the jury plains, charge if the bridge would not be liable that the defendant maintained, or if the water constructed properly it is important of plaintiffs, diverted to the injury necessarily charges negli- that there were two in mind bear was directed. subject on to which all evidence gence and negli- of the bridge, construction These negligent were The jury, in the river. to remain the cribs allowing gently said by all that was therefore, have applied must necessarily to these charges. subject negligence the Court *17 error, full were free from this subject instructions on of negli- issues After clearly only stating explicit. deter- is to the Circuit said: business your gence, Judge “So is or not the defendant the evidence whether mine from of; and whether acts of negligence complained guilty said acts find that these acts of you or not negligence—if said acts, of and that the was guilty defendant were negligent the proximate from evidence—were acts of negligence, The the plaintiffs complain.” of which injuries causes not have that the could also plaintiffs charged were jury minds of the jury by satisfied the verdict unless had issues all the material the evidence on preponderance seventeenth, ninth, twelfth, The the pleadings. raised by therefore, exceptions, and twentieth nineteenth eighteenth, sustained. cannot be the Circuit was in error in
It is further submitted Judge was on the that the burden of defendant proof charging' if its defense that the was due damage, any, solely establish floods. It will be observed to unprecedented had laid upon the Court already 8 charge, case, their of proving alleged by pre- the burden 201 1903. The paragraph evidence. third ponderance and unusual as cause of damage “frequent answer alleging freshets,” defendant, high regarded by without the affirmative defense of objection by plaintiffs, setting up careful could floods so prudent extraordinary them. against not them or expected be anticipate provide defense, was on the de This an affirmative the burden being could be fendant to establish it. The plaintiffs required Frost v. it until it had made out. Berke overthrow been C., C., 402, E., 280; Co., R. 24 N. v. R. ley, Ellis S. that if was produced effect the damage charge occurred, if freshets, it would not but
by extraordinary floods, notwithstanding unprecedented negli- defendant, defendant would still gence be liable, reason and an unbroken supported line n the familiar authority. In addition to decisions State, on this in accordance point charg-e laid Commentaries on the Thompson’s doctrine down other relied on authorities de- Negligence Law There is intimation in the that the rail- no charge fendant. be held to a warrantor injury arising
road should against the river. structures for On placing told reasonable care distinctly contrary, were think from these We could be diligence required. fourteenth, eleventh, tenth, it is apparent observations exceptions twenty-seventh twenty-second, twenty-third *18 be sustained. cannot
In the defendant insists the Cir- twenty-fourth exception, cuit erred not to Judge jury requests charging if effect that to land resulted from damage plaintiffs’ and other causes not acts connected logs, hauling could charged complaint, plaintiffs negligence to the The was clearly given recover. instruction very the acts of the de- must them plaintiffs satisfy jury and that were fendant were negligent, complained of think, We causes of the damage alleged. proximate Jones Opinion of the Court. S. C. reason, no injury resulted to defendant from the refusal of this The request. same reasoning applies to twenty- fifth exception, relating constructon of the temporary bridge.
The twenty-eighth exception is as follows: “Because his Honor refused to defendant’s charge thirteenth request follows, charge, to wit: ‘That plaintiffs cannot recover this action for growing land in crops ” question, which belonged to N. N. J. Jones.’ J. not a action', and it is party that it hardly conceivable was necessary to instruct the could not recover for damage Besides, third property party. it was made manifest when the as to crops admitted, it was for the purpose value showing of the land and the done to it. damage consideration
Upon case, of the whole we think the charge of the covered presiding Judge substantially the law appli- issues, cable to the the defendant was not preju- diced the refusal of its requests charge.
Inasmuch as the Code, 2041, act of Civil section was not construed the Circuit and its Judge, interpreta- is not case, tion to the decision necessary of the we express n no as to its effect. opinion is, The this Court judgment judgment Circuit Court be affirmed. I concur in the result. Pope. Mr. Citiee Justice
defendant was all liable for clearly damages arising left “cribs” in the stream. I am not so clear as to “piers” bridge.