16 Neb. 161 | Neb. | 1884
Lead Opinion
This cause was before this court in' the year 1883, and is reported in 14 Nebraska, 170, the judgment being' reversed. On the second trial the jury returned a verdict in favor of Brown for the sum of $6,000. • The principal ground of error relied upon in this court is, that the verdict is unsupported by the evidence.
It is alleged in the petition in substance that in the year 1876 the railroad company constructed a railway bridge across the Platte river, between the counties of Douglas and Saunders; that Brown, about the year 1876, erected a grist mill on the bottom lands south of the Platte river, in. Saunders county, and some distance below the bridge in question. This mill was propelled by water from a stream running parallel with the river. In March, 1881, an immense ice gorge was formed at the bridge, which for a time made a completé dam across the river, and caused the water to flow over the bottom lands south of the river, depositing sediment from one inch to three feet in thickness and destroying the water power and mill property of Brown. It is also alleged that said bridge and the approaches to the same were constructed in such a negligent, wrongful, and improper manner as to create and remain an unlawful obstruction in said Platte river and to prevent the natural flow of water and ice therein, and to cause the same to gorge, back up, and overflow upon the adjoining lands,
The railway company in its answer admits the construction of the bridge; that it continúes to use the same as a part of its line, but denies that said bridge was constructed in a negligent, wrongful, or improper manner, and alleges uhat it was and is a suitable, safe, proper, and lawful structure. It denies that the bridge formed an obstruction to the flow of ice or water in said river in such manner as to cause a gorge of the ice therein, or to cause the river to overflow its banks, and alleges that the damages sustained by Brown were caused by the unprecedented high water in the spring of 1881, and resulted wholly from the elements or the act of God.
The question presented is, whether or not the bridge in question was properly constructed and maintained. The testimony shows that the Platte river at the point where the bridge is located is a little less than 2,100 feet in width. The bridge in question, as described by the engineer of the railroad company, “is constructed with pile bents, five piles to the bent, driven in the sand, which were driven by a hammer of 2,250 fall.” The following is a portion of his testimony:
Q. What is the distance between bents from center to center of the piles?
A. Twenty feet.
Q,. What is the percentage of the space taken up by the piling in that bridge?
A. About one in twenty.
Q. About five per cent?
A. Yes, sir.
Q,. How high were the banks of the river at the time of the construction of that bridge over the ordinary surface of the river in low water times on the south side of the river?’
Q. How were they on the north side?
A. , About six or seven feet.
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Q,. How high was that bridge in the clear to the bottom of the stringers from the ordinary surface of the water?
A. I should say from low water mark to the bottom of the stringers, my impression is it was about eight feet, between seven and eight feet.
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Q,. I will ask you as an engineer, in your opinion, whether the bridge that you planned and constructed on the Platte river at "Valley, in view of the known habits and floods of the river, and in view of the fact that all other railway bridges along its course were constructed in substantially the same manner and had up to that time proved sufficient, if it was a suitable, safe, and proper bridge to accommodate the ordinary known and usual floods of ice and water?
A. Yes, sir. From the experience I have had and fi’om the observation I have had from the river when I had charge of bridges, and from going and examining the Oreapolis bridge to see if there were any damages, I concluded to the best of my judgment the bridge was sufficient for the ice and floods.
Three other railway engineers also testify to substantially the same facts. If also appears from the testimony that the first bridge constructed in this manner, in this state at least, was that across the North Platte on the. main line of the Union Pacific railway, the width of the channel being about 2,000 feet. This bridge was erected in 1868, and continued unimpaired until the breaking up of the ice in the spring of 1881. The second bridge constructed on this plan was that of the B. & M. railway across the Platte near Kearney, in 1871-2. The river at that point is divided into numerous channels, their aggregate width being
Judgment affirmed.
Dissenting Opinion
dissenting.
While the judgment of the district court must be affirmed for the want of a majority of this court to reverse it, I regret to be obliged to withhold my concurrence in the above opinion of my brother Maxwell. I find no fault with the syllabus, so far as it goes, and I agree that the weight to be given to the conflicting testimony of the professional witnesses is a matter which the law leaves with the jury, and with which this court cannot interfere, whatever might be our opinion as to the relative weight that we would accord to the testimony of such professional witnesses in a matter heard before ourselves.
But upon the trial there was evidence admitted on the part of the plaintiff therein which I think should have been
Q,. State, if you know, from personal observation how' this bridge has affected the flow of ice and water in the Platte river at other times than at the time of this particular gorge, with reference to throwing water and ice or causing gorges to throw the-ice and water out of its banks?
A. The bridge was so constructed that it was almost impassable.
Objected to by defendant’s attorney as incompetent. Objection sustained. ■
Q. State what it has done, that you have seen it do since the gorge of ’81 ?
Objected to' as incompetent by defendant’s attorney. The gentleman has repeatedly stated in the presence of the jury that during last winter and ’81 that the company was compelled to keep a gang of men at their bridge for the purpose of blowing up and removing the ice gorge, and he has stated this against our objection for. the purpose, as we say, of influencing the jury in the consideration of this case, and the statement is not supported by the evidence.
Q. Do you know whether or not at other seasons than' this particular season of ’81 gorges of ice have been forced against this particular bridge?
Objected to for the reason that it is leading. Objection overruled..
A. It has.
Q. State what are the facts in that regard, and describe the extent of the flow of the water and ice in the river?
Objected to as incompetent, for the reason that it has no
A. In the spring of 1882 the ice gorged against the bridge.
Under the law as laid down in this case when it was before this court at a previous term, 14 Neb., 170, the only question to which the above testimony could be held to be applicable was, whether at the time of the construction of this bridge, in the year 1876, the said railway company, in planning and constructing its bridge, brought to their execution the engineering knowledge and skill ordinarily practiced in such works, and saw to the practical application of such knowledge and skill to the work in hand, among other things so as to allow of the passage of water and ice such as is known to'pass in the stream annually, or which may reasonably be expected to occur occasionally.
The law as thus laid down ought t’o have been followed by the district court in the second trial. But in the admission'of the above testimony I think that it was widely departed from and disregarded. The conduct of the river in years subsequent to the erection of the bridge could have no possible bearing upon the question of care, diligence, and skill used by the railway company in the plan and construction of the bridge in question. The plaintiff’s cause of action was complete, if ever, in 1881; hence from every point of view evidence of the conduct of the river in 1882 was wholly irrelevant and inadmissible, and I think that 'said testimony may be presumed to have been prejudicial and injurious to the plaintiff in error.
For the above reason I think that the judgment ought to be reversed and a new trial awarded.