81 Neb. 186 | Neb. | 1908
The plaintiff is the owner of a tract of land situate on tlie south bank of tlie Nemaha river. The course of the river for the distance which we need to consider may be stated as follows: From the northeast corner of the plaintiff’s land tlie river flows in a northeasterly direction for about half a mile, thence south for a distance of nearly one mile, thence in a northeasterly course to and beyond a bridge of the defendant railroad company across the river, known as bridge 67. This bridge is about two miles east of the plaintiff’s land. The defendant’s railroad approaches the Nemaha river from the northwest, coming to a point near the north bank of the river where it turns south, half a mile east of the plaintiff’s land, thence east paralleling the general course of the river west of the bridge. For a distance of about one mile west of the bridge the railroad company had heretofore constructed a roadbed or embankment, leaving the same without culverts or openings for the escape of flood waters. Plaintiff alleges, in his petition, in substance and in part,
Complaint is made of instructions 5 and 6. In No. 5 the court instructed the jury as follows: “It was the duty of the defendant in planning and constructing said embankment and bridge to use and employ the engineering knoAvledge and skill at the time of such construction ordinarily practiced in the construction of such work, and to see to the practical application of such knowledge, and skill to the work of constructing said bridge and embankment, among other things, so as to alloAV the passage of Avater, such as is known to pass in said river annually, or Avhich may be reasonably expected to occur occasionally, without regard to such great or sudden overflows as are often designated as the acts of God.” By instruction No. 6 the jury were told that, if they found from the evidence that defendant thus constructed such bridge, then it would not be guilty of negligence, and would not be liable in this action; but, on the other hand, if it failed to exercise and employ such reasonable and proper skill
There is no doubt but that the rainfall during the seasons in which plaintiff’s crops were destroyed was heavy; and defendant contends that the damage was caused by excessive rainfalls, and was not due to the improper construction of its railroad .einbankment and bridge. The evidence, we think, would have been sufficient to have sustained this contention; and, had the verdict been for defendant, it would not have been set aside. On the other hand, the evidence is sufficient to justify a finding that the natural course of the flood waters of the Nemaha river at this place was in a northeasterly direction; that they were retarded and held back upon the plaintiff’s land by the defendant’s embankment for a time long enough to have destroyed his crops. In weighing the evidence the jury have chosen one of two reasonable inferences, and we cannot say that it is wrong.
During the impaneling of the jury, defendant challenged for cause two jurors. One upon his voir dire stated: “Q. You have seen the effects of the rainy weather down there, and the floods from the river, I suppose. Do you have any opinion with reference as to who is to blame in any way for the retention of the floods? A. Any place? Q. This place would necessarily be on the bottom land.
' One witness called by plaintiff was permitted to testify that since the destruction of plaintiff’s crops the defendant company changed their bridge by extending it, thereby increasing its capacity for carrying away the flood waters.
As to the measure of damages, the evidence showed that at the time each crop was destroyed it had about matured and was a fair average crop, and, further, that it was totally destroyed. The witnesses testified as to the fair market value of the same. The court instructed the jury in this regard that, if they found for the plaintiff, they would find the fair value of the crops of the plaintiff which were destroyed by the negligence of the defendant, and thus arrive at the aggregate amount the plaintiff was entitled to. Where crops are partially destroyed the rule as to the measure of damages is “the difference in the fair market value of the crop just before the land was flooded * * * and immediately thereafter.” Chicago, B. & Q. R. Co. v. Mitchell, 74 Neb. 563. However, where the crops are totally destroyed, it is not required that the rule be stated in the. language used in the Mitchell case, but an instruction directing the jury to find the vnlue of the crop at the time of its destruction is necessary. The evidence being given with reference to the fair market value of the crops, the omission of the word “market” from the instruction was not fatal.
We find no prejudicial error in the record, and we recommend that the judgment of the district court be affirmed.
Affirmed.