166 Ky. 327 | Ky. Ct. App. | 1915
Reversing.
In this suit against the Louisville & Nashville Railroad Company to recover damages to his property, alleged to have been caused by the diversion of the waters of Paint Lick Creek, plaintiff, George W. Conn, recovered a verdict and judgment for $2,000. The railroad company appeals.
Plaintiff’s property lies in the town of Paint Lick. At this point Paint Lick Creek runs between the counties of Garrard and Madison. Defendant’s railroad runs from Richmond to Lancaster in a southwestern direction. The creek runs in a northwestern direction. The villag’e of Paint Lick is located principally between the railroad track and the creek. The principal street of Paint Lick, which is the Richmond and Lancaster turnpike, crosses the railroad track about eight or nine hundred feet from the railroad bridge on the Garrard side. Prom this crossing it is about three hundred feet from the pike bridge over the creek. Plaintiff’s residence faces this street near the railroad track. Back of plaintiff’s residence is his shop, and further back is Rucker’s barn. The land back of these buildings is bottom land and is about ten feet lower than the railroad track and the street.
In July, 1909, the railroad company reconstructed its bridge at Paint Lick. At that point the channel proper of the creek is about 160 feet wide. On each side of the channel proper the bank ascends, and from the top of one of these banks to the other the distance is 448 feet. In reconstructing the bridge the company placed two additional stone piers thereunder. These piers were 17 feet high and 6 feet wide. According to the testimony for plaintiff, the stone abutments were lowered 18 inches by taking out two stones, and the bridge was let down 18 inches lower than the old bridge. At the top of the bridge the iron plate girders were 4 feet deep and the rails and cross ties 12 inches deep. The dirt fill on the Madison side was 20 feet high and about 150 feet long. On the Garrard side it was 50 feet long and 20 feet high. Estimating the channel of the creek as extending not from the banks proper but from the ascending bank on each side, about 74 per cent, of the channel, as a whole, was obstructed. One of the engineers who testified for plaintiff stated that the effect of this was to set the' waters
According to the evidence for the defendant, the two •stones that were removed from the abutments were replaced with creosote timbers and the bottom of the present girder is 2 or 3 inches higher in elevation than the old span. 'On being apprised of the fear on the part of the residents of Paint Lick that the bridge might cause an overflow, A. P. Prendburg, the company’s engineer, made .a careful investigation and estimated the Paint Lick water shed as containing 50 square miles. As a matter of fact, the government map showed it to be 46 square miles. To permit the passage of this water required 387 cubic feet per second per square mile. The bridge provided for 478 cubic feet. The high water mark of March, 1913, was 7 feet and 1 inch higher than the old high water mark. The old high water mark was 6.9 feet below the top of the bridge and 2.3 feet below the bottom of the girder. He further stated that the fills on each side of the bridge were not in the natural channel of the stream. In his opinion, the opening under the
As to the character of the flood and the. height of the waters on the occasion complained of, defendant introduced several witnesses. Dan Bodkins, who lived at Wallaceton, which is five miles above Paint Lick, and who had known Paint Lick Creek for twelve years, testified that the creek was two or three feet higher than he had ever known • it before. - The tide was a great deal larger and higher than on any previous occasion. Across the bottom the creek was 200 yards wider than he had ever seen it before. There was a hard downpour of rain and bridges, culverts, fences and things which had never been washed out since he had been there, were carried away. William Asher, who lived on Paint Lick Creek about two miles below Wallaceton, stated that Walnut Meadow Creek intersected Paint Lick Creek and lower down White Lick Creek ran into it. He had lived on the Wallaceton prong of Paint Lick Creek for fifteen years and in the Wallaceton neighborhood for over twenty years. He had also lived at Paint Lick for twelve years. In his judgment, the creek was three or four feet higher than it had ever been before. Pences and buildings that had never been carried away were washed away. The creek was 100 yards wider than he had ever seen it on any prior occasion. J. B. Gruynn, who .lived on Paint Lick Creek about two miles above Paint Lick depot for about fifty-four years, said that at his place the water was from four to four and one-half feet higher during the March, 1913, flood than he had ever seen it before. At his home place further down the creek the. water was four and one-
By way of rebuttal, plaintiff testified that he had seen it rain as hard as it rained that night in Paint Lick. G. M. Treadway testified as follows:
“Q. Mr. Treadway, had you ever seen rain fall as hard in that vicinity before the flood as you saw it the night of the flood and for as long a time. A. Yes sir, I have seen it rain as hard. ’ ’
It is the well settled rule in this State that one who’ constructs a bridge over a stream is liable only in the event that the bridge obstructs the passage of water that accumulates from such ordinary and usual rainfalls in the vicinity as might have been anticipated by persons of ordinary prudence and experience. He is not liable for damages growing out of overflows which were caused by extraordinary rains or floods, i. e., such floods or rains as are of such unusual occurrence in the vicinity that they could not have been anticipated by persons of ordinary experience and prudence. C. St. L. & N. O. R. Co. v. Hoover, 147 Ky., 37; Southern Ry. Co. v. A. M. E. Church’s Trustee of Harrodsburg, 121 S. W., 972; Wallingford v. Maysville & B. S. R. Co., 107 S. W., 282. There is no evidence in this case that the waters of Paint Lick Creek were ever obstructed or diverted by either the old bridge or the new bridge,, so as to injure the property of the residents of Paint Lick. There is no evidence that the openings in the new bridge were not sufficient to carry off the water that accumulated from such ordinary and usual rainfalls in that vicinity as might have been antici
No other questions are passed on.
Judgment reversed and cause remanded for proceedings consistent with this opinion.