38 F. 391 | U.S. Circuit Court for the District of Southern Mississippi | 1889
This issue is submitted upon petition, answer, and proofs, from which the following facts appear: That the petitioner is, and has been for many years, the owner of the lots described in the pleadings, and the improvements thereon, situated in the city of Vicksburg. That, for the consideration of $10,400 paid to her, she, before the injuries complained of, conveyed to the trustees for the Vicksburg & Meridian Railroad Company a right of way over said lots and property. That when this conveyance was made, and for some time thereafter, trains were only run to the bank of the river, and were of the usual weight, and were run at a slow rate of speed, which did no damage to the buildings and improvements of petitioner on these lots, but that since the road has been in the hands of the receiver, and operated by his employes, this portion of the road-lied has become a part of an extensive line of railroad, over which largo and heavy trains are drawn by large and heavy engines. That on the grounds of the petitioner the road is of an unusually steep grade, and makes a curvo; and that to ascend this part of the road it is necessary, with a heavy train, to increase the speed
I have long since found that experience is much stronger than theory. Without further comment on the testimony, I am satisfied that the injuries to these buildings complained of resulted from the excessive speed at which these heavy trains were run over the track on petitioner’s grounds, or, rather, through them. The injuries to the cisterns is more doubtful; to a portion of them, at least. It is earnestly urged by defendant’s counsel that as the right of way over the petitioner’s grounds has been purchased and paid for at a large price, it included payment for the damages complained of; or, in other words, that the defendant, or the railroad company for whom he is acting as receiver and representative, is the owner of the right of way through petitioner’s grounds, and entitled to'run the trains over it at any rate of speed that may be necessary, without committing any violation of law, rendering himself or the interest represented by him liable for the injuries complained of. I am of the opinion that the purpose of the legislature in limiting the speed 'of trains passing through towns and cities to six miles an hour, prescribed in section 1047, Code 1880, was for the purpose of preventing injuries to persons and property, real and personal; and therefore the corporation, of which the receiver is the representative in its operation, is liable for any injuries committed by the running of the train, while
The petitioner further alleges that the defendant, by his employes, in making a ditch or sewer, so changed the flow of the water as to divert it from its natural channel, and threw it upon certain lots of ground owned by her, and by which her said property has been greatly damaged. I have examined the proof on this point. I am satisfied a portion of the water thrown upon the petitioner’s lots has been caused by the change made, but not all; and how much has been so diverted is uncertain. Again, if the pipe or sewer made' by the Compress Company was constructed before the sewer was made by defendant’s employes, then petitioner’s premises would have had the same water thrown upon her lots. The proof is uncertain as to which was first made. Petitioner was, in addition to this, after this sewer was made, paid the sum of $400 for making embankments on her lots. This injury from the sewer, must then have occurred, and should have been, if it was not, embraced in that settlement. So that, upon the whole case, I do not believe any damages should be allowed for this portion of the complaint.