126 Iowa 90 | Iowa | 1904
Defendant operates a line of railway from Council Bluffs to Kansas City. Just over tbe State line in Missouri it crosses the Nishnabotna river. Prior to the year 1898 the bridge crossing this stream consisted of two spans, aggregating two hundred and six feet in length. Tn the year 1898 it replaced this bridge with another of three spans, aggregating three hundred and fifteen feet in length. Tn constructing this new bridge a number of piling were driven in the. channel of the river, and when the bridge was. completed these piling were cut off so that the ends thereof projected some distance above the bed of the stream, where they remained down to the time of the flood of which the plaintiff complains. After the construction of the new bridge, the defendant also threw into the channel of the stream, and around the center pier of the bridge which has always been at practically the same place, several car loads of stone and broken rock. Plaintiff owns land in the river bottom in this State some distance above the bridge, and he claims that it was overflowed and damaged in the year 1902 by reason of the piling left in the stream, which gathered debris of various kinds, and of the stones cast into the stream, which obstructed the natural flow of the water. The issue as to the faulty construction of the original bridge, and the insufficiency of the new one to cany the water of the stream, was not submitted to the jury. The sole matter left to its determination was the presence of the piling and the stones. Defendant pleaded, however, that the piling and the stones were necessary to the protection and maintenance of the second bridge, and were not such as to
Defendant complains of the trial court for not sustaining its motion for an instruction directing the jury to find a verdict for it. . This complaint is without merit. There was enough testimony, if believed by the jury, as to. the unnecessary obstruction of the river, to justify the. court in submitting the matter as a question of fact. It is also contended that the flooding of the plaintiff’s land was due to dikes or levees constructed by him and others. This question was also submitted to the jury, and it was told, in effect, that if these dikes or levees, in conjunction with the natural contour of the country, held back or retarded the flow of the flood waters, and caused them to accumulate north of plaintiff’s land, he could not recover. The approximate cause of the flooding of plaintiff’s land was properly submitted to the jury.
Further, it is argued that whatever damage plaintiff suffered was due to surface water caused by an extraordinary and unprecedented flood, and that defendant was not responsible therefor. This issue was also submitted to the jury, and there was such a conflict in the testimony, or in-the inferences to be drawn therefrom, as to justify such submission.
The court instructed that “ plaintiff’s lands were injured to some extent by overflow from the Nishnabotna river.” As the evidence was without conflict on this point, there was no error here.
Other instructions asked by the defendant were, in effect, given by the court in its charge.
Some other matters are complained of — as that the court failed to define the term “ proximate cause,” and failed and neglected to- number the paragraphs) of its instructions. There is no merit in- any of them.
The case was peculiarly for a jury, and with its findings we are not disposed to interfere. — .Affirmed.