57 Ark. 512 | Ark. | 1893
The complaint allegues that the growing crops of the plaintiff on two plantations situated on the south bank of Red River were destroyed on the 9th day of May, 1888, by water backed onto them by the defendant’s embankment across the river bottom; and that the injury thus sustained resulted from the negligence of the defendant in constructing the embankment without sufficient openings to permit the escape of the water.
The answer denies the negligence charged, and denies that the crops were destroyed in the manner stated in the complaint. The cause was tried by a jury, and the company appeals from a judgment for the amount of their verdict.
1. Taking the grounds assigned in the motion for anew trial in the order in which they have been sented by the argument of counsel, the first is that the court erred in permitting Mrs. Cloud, the owner of one of the plantations, to testify that in 1884 she complained to the defendant’s road-master that the railway embankment was holding' the water upon her lands, and that it needed more openings; and that he replied by saying that if she would procure a petition from the citizens, he would send it for her to the headquarters of the company. The only ground on which the appellee’s counsel justify the admission of this testimony is that it proved a notice to the defendant to remove the alleged nuisance. But the pleadings made no issue as to whether such notice was given, and if that question had been raised on the trial, it does not appear that the road-master was an agent of the company to whom the notice could have been properly given. The conversation between himself and Mrs. Cloud was therefore incompetent, and should have been excluded.
2. Under the ruling- next complained of, the plain- ^ 0 x ^ ^ tiff was permitted to give in evidence his opinion as the value of the crops at the time of their destruction, and to state as the basis of his valuation the usual yield of the lands in crop seasons similar to that of 1888. The witness being a farmer, his opinion was admissible to prove the value of the crop, and it was proper to permit him to state the facts from which his conclusion was arrived at, as these would aid the jury in determining whether his estimate was correct. Phillips v. Terry, 5 Abb. Pr. (N. S.), 327. While the damages recoverable could not exceed the actual value of the crops at the date of the injury, with legal interest, it was not improper that the jury, in estimating that value, should consider the probable value at maturity if they believed from the evidence that the crops would have matured but for their loss in the manner alleged in-the complaint. This view is not in conflict with the decision in Yarborough’s case determined at the last term. Railway Co. v. Yarborough, 56 Ark. 612. In that case there was no evidence from which the jury could have found that the crops would have matured if they had not been destroyed by water backed upon them by the railway ; and the judgment was reversed because it was obvious that the damages recovered were assessed on the basis of the value the crops would have had at maturity. But in the present case there was testimony from which the jury might have found that the lands were not overflowed at all directly from the river, and that the crops might have matured if they had not been destroyed by the back water.
3. The only part of the court’s charge excepted to # . ox is embraced in its second instruction ; and the rule of damages which that instruction states was approved in the case cited above.
4. The court refused to give certain instructions 0 requested by the defendant numbered respectively 12, 13, 14, 17 and 18. There was no error in rejecting either of these instructions. By the 12th the jury would have been told that the testimony of certain witnesses was competent, and should be considered with all the other evidence. Nrom the action of the court in admitting the testimony referred to, the jury must have understood that it was to be treated as competent, and they could not have refused to consider it without disregarding the court’s first instruction which was applicable to all the evidence. The instruction was therefore unnecessary, and the jury might have construed it as attaching a special importance to that part of the testimony to which it applied. Neither the thirteenth nor the fourteenth instruction contained any accurate statement of the law pertinent to the subject matter of trial. As showing the inaccuracy of both these instructions, we cite the recent decision of this court in a similar case. Railway Co. v. Cook, ante, p. 387. The seventeenth and eighteenth instructions appear to have ° . . . no other object than that of cautioning the jury against entertaining a bias for the plaintiff because of the fact that the defendant is a corporation, or a prejudice against the defendant’s witnesses because they were in its employment. The court doubtless regarded these instructions as uncalled for, and it was entirely within its discretion to refuse them.
5. The next assignment is upon exceptions reserved ° . r * to the rulings of the court in excluding the opinions Knobel and Van Frank offered in evidence for the purpose of showing that the defendant’s road-bed was incapable of backing water upon the plaintiff’s lands. Both these witnesses were civil engineers of long experience, and their qualifications to testify as experts were not questioned. Their opinions were admitted as to a part of the embankment, but were excluded as to a section of it with reference to which they were of equal or greater importance to the defendant. For convenience we refer only to the testimony of Knoble, on which the question to him was based, as the ruling to be made upon the exclusion of his opinion will apply equally to the rejection of Van Frank’s.
There is a declivity in the lands of the plantations as they recede from the river in the direction of the railway, and they are situated in the vicinity of numerous lakes and bayous. When the waters of the river are high they pass out of its banks at low places and flow into these lakes and bayous. The latter are thus made to overflow the low lands adjacent to their banks, and it seems that currents sometimes pass from the lakes over the plantations into the river. Other currents are toward the railway, which passes through the bottom in a southwesterly direction from Fulton where it crosses the river. Its line is nearly straight, and lies south and east of the plantations and of the lakes and bayous. It is also south of a ridg'e known as Homan ridge which begins at or near a place on the line of the road known as the Edmunds field several miles northeast of the nearest of the two plantations and extends to the river at a point above them both. Knoble testified that he located the railway through the bottom in 1873, on its present line; that, on examination then made, he found high-water marks indicating that all the lands lying north of Homan ridge were subject to overflow, and that he constructed the railway embankment south of that ridge so that.it would be protected by the ridge ; that the ridge is higher than the embankment and that none of the lands north of the ridge could be affected by the road-bed after it passes the Edmunds field, for the reason that the ridge is' between them and the embankment. The witness also stated that he made a topographical survey of the Red River bottom in 1891, and stated the relative height of the embankment and the lands north of it, including the plaintiff’s plantations, as shown by the levels he ran. He also stated the number, length and depth of the trestles between Fulton and the Edmunds field, and gave in detail the results of his last survey and of the observations he made with the view of ascertaining the height and flow of the waters which had previously covered the bottom north of the railway. He was then asked to state, from the examinations thus made and from his experience as an engineer, whether in his opinion it was possible for the railway embankment between Fulton and the Edmunds field to back water over the plaintiff’s plantations situated respectively at a distance of four and ten miles. The court excluded the answer ; and we think the defendant’s exception to the action of the court in doing so is well founded. We have ruled at the present term that it was error to permit a non-expert to answer a similar question, and the reason stated for the decision was that the question could not be properly answered except by one possessing special knowledge and skill. Railway Co. v. Cook, ante, p. 387. Here the witness was competent to answer, by reason of an experience peculiar to his profession ; and the question related to an essential matter upon which the evidence was conflicting. The exclusion of the answer and of the other similar testimony which the court rejected was therefore an error ; and for this we conclude that the judgment ought to be reversed, and the cause remanded for a new trial. 1 Greenleaf, Ev. sec. 440, note; Moyer v. N. Y. Cent. R. Co. 98 N. Y. 645; Grigsby v. Clear Lake Water Co. 40 Cal. 396; Phillips v. Terry, 5 Abbott’s Pr. (N. S.), 327; Clason v. Milwaukee, 30 Wis. 316; Ball v. Hardesty, 38 Kas. 540; Commonwealth v. Sturtivant, 19 Am. Rep. 401; Railroad Company v. Schultz, 43 Ohio St. 270, 283; Hammond v. Woodman, 66 Am. Dec. 242, note.
It is so ordered.
