77 Ind. App. 261 | Ind. Ct. App. | 1922
Complaint by appellant against appellee to recover damages for the alleged flooding of certain land, owned by appellant, by the construction of its railway embankment and an insufficient bridge across •Killmore Creek. The complaint in substance alleges that appellee owned and for years maintained an interurban railroad from Kokomo to Frankfort, extending across appellant’s land and crossing said creek at a point about 200 feet north of the northeast corner of said lands. When the railroad was constructed appellee placed a concrete bridge across the creek. This bridge was destroyed by the 1913 flood. The railroad was first constructed so that the grade thereto extended across the high-water channel of the creek and totally closed the water channel except that part occupied by bridge. In 1913, appellee constructed a new bridge of slightly larger capacity than the old one, but it was insufficient to carry the water which necessarily passed through the creek, and from the time of the construction of the new bridge in 1913, appellee so maintained such bridge and embankment as to make the channel of the creek less than it had been from time immemorial. The complaint further alleges that by reason of the wrongful conduct of appellee in so obstructing the channel of the creek by the maintenance of said bridge and embankment, the water of the creek was increased by rains during the spring of each year after 1913 and could not flow through the space left under the bridge; that by reason of the conduct of appellee in constructing and main-
There was a trial by jury which resulted in a verdict and judgment for appellee from which appellant appeals. The errors assigned relate to the giving of instructions Nos. 2 and 3 given by the court on its own motion and instructions Nos. 6, 10, 14 and 16 given by the court at the request of appellee.
The objections to instructions Nos. 2 and 3 are that they “place upon plaintiff the burden of proof of defendant’s failure to fulfill the conditions of the statute granting it the right to build and maintain its railroad across Killmore Creek; whereas the contention of plaintiff is that the burden of proof upon this question is upon the defendant if such defense is within the issues.” Appellant insists that since the only answer is a general denial that defendant cannot under that, issue confess and justify the flooding as charged in the complaint; and'that a justification of the trespass must be specially pleaded.
In order to get the full force of appellant’s contention it is well to keep in mind the statute authorizing interurban railroads to construct bridges across streams and the averments of the complaint. Section 5675 Burns 1914, Acts 1901 p. 461 provides that any street railroad company theretofore or thereafter organized desiring to construct or having theretofore constructed any interurban or suburban railroad shall in addition to other rights and powers theretofore granted possess the general powers and be subjected to the liabilities and restrictions as follows: “Fifth. To construct its road across any stream of water, watercourse, road, highway, railroad or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property, and, with the consent of the authorities of the
The Supreme Court in Cleveland, etc., R. Co. v. Wisehart (1903), 161 Ind. 208, 67 N. E. 993, in discussing a similar statute relative to the rights and duties’ of steam railroads in the construction of a bridge over a stream held that in the construction of a railroad across a watercourse the railroad company was required to exercise care and skill to avoid injury to property of another and that in the absence of unlawfulness or negligence it was not liable to adjoining lands arising from the obstruction of a watercourse by a railroad embankment. Counsel, there as here, contended that the act complained of was unlawful. In reply to that contention the court said:
“Undoubtedly a railroad company, in the exercise of its rights under this statute in constructing its road upon or across any stream or watercourse, must do so in such a manner as not thereby to injure the property of other persons; and, after the crossing is made, it is required to restore such stream or watercourse to its former state, at least so far as is necessary to preserve its use and franchise. * * * But the company, in building its road upon or across such stream or watercourse, is not to be considered or held an absolute insurer against all injury or damage to the property of others, but it is required to exercise proper care and skill under, the circumstances in order to avoid injury or damage to the property of another; but beyond this it is not required to go. * * * The statute herein-before set out expressly authorized the railroad company to construct its road upon or across the stream or watercourse in controversy, subject to the conditions
And in Wallace v. Columbia, etc,, R. Co. (1890), 34 S. C. 62, 12 S. E. 815, cited in the Wisehart case with approval, it was held that in an action against a railroad company for damage done to land, through which a right of way had been given, by the obstruction by defendant of a flowing stream, the complaint failed to state facts sufficient to constitute a cause of action, where it failed to allege facts tending to show that the railroad company, in constructing its roadbed, wantonly, negligently or unskilfully obstructed the streams.
The court in Cleveland, etc., R. Co. v. Wisehart, supra, after reviewing the authorities, said: “There is an entire absence in the paragraph in question of any direct averments or statements of fact to show that the injury or grievance of which appellee complains was due either to the negligence or wilfulness of appellant, and for this reason, if for no other, the pleading is insufficient on demurrer.”
The court committed no error in the giving of,instructions Nos. 2 and 3.
The trial court in the instant case in other instructions informed the jury that it should take into consideration the whole of the evidence and all the facts and circumstances proven in the trial and if the evidence was evenly balanced on any issue it should find against the party having the burden on such issue. Appellant could not recover unless he established the material averments of his complaint by a fair preponderance of the evidence and if the evidence were evenly balanced as to such averments he could not recover.
Appellant contends that the court by the use of the phrase “to your satisfaction” placed upon him a greater burden of proof than the law required him to assume. A similar instruction was criticized by this court in Sherman v. Indianapolis Traction, etc., Co. (1911), 48 Ind. App. 623, 96 N. E. 473, where it was said: “The trial court could very properly have refused to give said instruction, and such a ruling would have been commendable; * * *” But the court after considering the instruction in connection with other instructions given held the giving of such an instruction was not reversible error where the court’s instructions clearly defined what was meant by a preponderance of the evidence and advised the jury that a preponderance of the evidence was sufficient to justify a finding in favor of the party having the burden. The words “to your satisfaction from the evidence” are equivalent to saying to the jury that the evidence must be such as to satisfy the jury, etc. The words “to the satisfaction of” and “sat
Appellant in his complaint charged that appellee caused a new bridge to be erected after the old one had been washed out by the flood of 1913, and made the new bridge thirty-two feet longer than the old one, but had wrongfully left the dirt under the addition made to lengthen the bridge and did not increase the capacity of the bridge; and that appellee continued to so maintain said bridge and embankment so as to decrease the channel of the creek from what it had been from time immemorial, and “by reason of the wrongful conduct of the defendant in so damming up and obstructing the channel of said Killmore Creek by the maintenance therein of said railroad bridge and embankment. * * * By reason of the conduct of the defendant in .so constructing and maintaining its said embankment .and bridge the water was obstructed and dammed up iso that it overflowed plaintiff’s lands” to appellant’s ■damage; that “before the construction and maintenance •of said bridge and grade,” the water did not flow over .appellant’s lands, “but that since the construction thereof” the water has bpen obstructed ¡fry said “grade
Appellant tendered a number of instructions which were given to the jury and which show that appellant’s theory of the complaint was that the construction and maintenance of the bridge with the embankment under it constituted but a single act. Instruction No. 2 related to the duty of appellee “in the construction and maintenance of its road.” Instruction No. 4 was to the effect that if the jury found that appellee “negligently by the construction of a bridge with an insufficient water way increased” the natural flow in times of high water, that it would be liable for the damages occasioned by such increased flow. In instruction No. 5 appears the expression “in order that it (appellee) may be found to have exercised due care in the construction of its right of way across a water channel” it must take notice of the character of the country and “provide ample accommodations for the free passage of water,” etc. And in instruction No. 6 given at request of appellant, the court instructed the jury as follows: “If you find from a preponderance of the evidence, that the defendant negligently constructed and has negligently maintained its railway across Killmore Creek with an opening under its bridge across said creek too small” and if “by reason of said negligent construction of said bridge” the water backed up and overflowed appellant’s lands, appellee would be liable for the damages resulting therefrom. Reference is made in instruction No. 7 to damages to appellant’s lands “by reason of the negligent construction of defendant’s bridge upon the right of way across” the creek.
When we consider instruction No. 10 in connection with the complaint and with the instructions given at
This case was tried upon the theory that appellee was guilty of negligence in the construction and maintenance of its road across the creek, and in view of the rule laid down in Watts v. Evansville, etc., R. Co., supra, we hold that the error, if any, in giving said instructions is harmless in so far as appellant is concerned. There was no error in overruling the motion for a new trial.
Judgment affirmed.