191 Ind. 27 | Ind. | 1921
This action was instituted by appellant against appellees to recover damages for injury to her real estate. The court made a special finding of facts, stated conclusions of law thereon, and rendered judgment for appellant. Both parties have appealed. Appellant filed her record under the above title and' number, and assigned as error that the court erred in its fourth conclusion of law. Appellees filed their record under the title and number “The Evansville, Mt. Carmel and Northern Ry. Co., and the Cleveland, Cincinnati, Chicago and St. Louis Ry. Co., appellants, v. Roberta G. Watts, appellee; No. 9527,” and each appellant therein assigned the following errors: (1) That the court erred in overruling the separate motion of each appellant fcr an order requiring the appellee to separate her complaint into two ór more paragraphs; (2) that the complaint does not state facts sufficient to constitute a cause of action; (3) that the court erred in overruling the separate demurrer of each appellant to the complaint; (4) that the court erred in each conclusion of law; and (5) that the court erred in overruling the separate motion of each appellant fon a new trial.
The special finding is voluminous, consisting of fifty consecutively numbered items, The substance of so much thereof as is necessary to an understanding of the conclusions of law, is as follows:
From its source to the structure herein denominated the Big Four bridge the Wabash river is 432 miles in length, with an average fall per mile of 1.44 vertical
In 1910 and 1911 the Evansville company constructed a line of railway from Evansville, Indiana, in a general northwesterly direction to a point about one mile southwest of the city of Mt. Carmel, Illinois, where it connects with the Cairo line. The Evansville company so located and constructed its said line that it crosses the Wabash river, extending from the highlands on the Indiana side across the lowlands subject to overflow to the highlands on the Illinois side. As a part of said inter-highland section of railway the Evansville company erected across the lowest water channel of the Wabash river a railroad bridge, which is designated herein the Big Four bridge. By reason of an abrupt curve in said channel this bridge was located at right angles with said channel. Said company also constructed and erected embankments, small bridges and trestles, which in connection with said Big Four bridge constituted said inter-highland portion of said railway. These embankments, bridges, and trestles were constructed as permanent, structures for the permanent support of the way, trackage and traffic of the Evans
Since June 25, 1906, appellant has been the owner in fee simple of certain real estate comprising part of the low ground below said inter-highland section of railroad. One tract of her said real estate is known as the Bilderback forty, and another tract as the Watts quarter section. The right of way of said inter-highland section of railroad is 200 feet in width; and the southwesterly edge thereof runs diagonally across the Bilderback forty so as to cut off and cover 1.17 acres in triangular form in the northeast corner of' said tract; and said railroad has always extended longitudinally through the center of the said right of way.
The Evansville line is and has always been owned by the Evansville company. By virtue of a written contract between said parties, executed November 1, 1910, the Cleveland company became the lessee from the Evansville company of said Evansville line for a period of ninety-nine years from and after said date. The Evansville line, including the inter-highland section
During the month of March, 1913, a storm of rain occurred throughout the drainage area of the Wabash river and its tributaries, and in other parts of America, which storm, in respect of great precipitation in short' time over vast territories, was unprecedented. As a result of said storm the Wabash river was greatly swollen. The rainfall of said storm was so distributed and timed as that the crests of the White and Patoka river floods met and converged above and at Mt. Carmel, Illinois, with the crest of the Wabash river flood, so that thereby the Wabash river flood at, above and particularly below the confluence of the White arid Patoka rivers did on March 30, 1913, rise to an unusual and unexpected height, and said waters did on said day rise at and on the Mt. Carmel gauge to an unprecedented vertical height, viz., a height of 31.1 feet. The valley of the Wabash river at, near and for miles above Mt. Carmel and for miles down toward the mouth of said river was consequently submerged in water to a depth of three and one-ténth feet greater than was ever before or since known to history or tradition; and the area of such submergence from above Mt. Carmel down to the mouth of said Wabash river was consequently correspondingly and unprecedentedly increased.
When the flood waters arrived at the inter-highland section of railroad they overflowed, in varying depths.
Appellant’s husband and agent is, and for fifteen years last past has continuously been, by profession and occupation a civil engineer; that before the construction of the inter-highland section of the Evansville line aforesaid, he had knowledge of the form of construction as was then by said Evansville company intended; that he then expressed to said Evansville company an opinion to the effect that the proposed trestle and bridge openings in said section of railroad would be insufficient to allow due passage of the waters in times of high Wabash river'floods; that said Evansville company wholly disregarded said expression of opinion and modified the proposed plans in no respect by reason thereof, but did build and construct said inter-highland section of railroad according to said plans as then proposed, excepting that for reasons other than any consideration of said expression of opinion, the said section was by the Evansville company finally constructed with some modification of the openings at the trestle known as the Sumner ditch trestle by way of an enlargement thereof, but which enlargement was, with reference to floods of the extent of the floods of 1912 and 1913, too small to be material as furnishing additional passageway for the waters.
The action of the waters during the flood of January, 1913, was such as to wash and scour the site of said hole, as thereafter formed, to an area and depth sufficiently appreciable and material to substantially injure and damage the surface of said site and thereby to fur
From the sole and single standpoint of the business needs of said Evansville line itself, as ~a railway to be operated for profits to be earned by transportation of passengers and freight, the inter-highland section hereinabove described and referred to, was in all respects carefully and skilfully designed, constructed and maintained. But with respect to the rights of the plaintiff herein the Evansville company by constructing, and both companies by maintaining, the inter-highland section of railway did obstruct to an unreasonable extent the natural flow of the Wabash river flood-waters; and said companies did construct and maintain said inter-highland section with an unreasonably and improperly small amount and ratio of total flowage openings as compared with and as in proportion to the total obstructing surface, effect and influence of said embankments; and did thereby dam said waters up to an unreasonable extent and discharge them through said Sumner ditch opening in unreasonably, unaccustomedly and unnaturally great velocities, volumes and downward slopes of surface plane, all in the manner and with results as above set forth. Said damming and discharging was the direct, controlling, producing, immediate and proximate cause of the damage and injury to the “Bilderback forty” as hereinabove set forth; and that except for said damming and discharging said damage and injury would not and could not have occurred; and that defendants and each of them at all times knew, or in the exercise of due care should and would have known that said construction and maintenance in manner- and form as herein described constituted as aforesaid an unreason
The waters whereby the injuries and damages were inflicted on appellant’s lands were flood waters of, and characteristically belonging and appertaining to, the Wabash river, and excepting such negligible quantities as evaporated or settled in pools in swamps upon subsidence of flood conditions, said waters all returned to the main channel of said river or flowed to the Ohio river with, along and as part of, the Wabash river currents.
At all times prior to the March flood, 1913, the Evansville company, in planning, designing and constructing the inter-highland section of railway aforesaid, and each and both said companies in maintaining said section of railroad knew, or in the exercise of due and reasonable care and diligence could and must have known, and were reasonably bound to anticipate, that the Wabash river waters were likely and liable again to attain flood conditions that existed during-the flood of August, 1875, as set forth in special finding No. 9, and that they were likely and liable also to attain, by reason of changed conditions in respect of additional ditching, drainage, sewerage, tiling, denudation of forests, and similar processes of development throughout the drainage area of the Wabash river since August, 1875, a slight additional depth at the Mt. Carmel gauge; but neither of said companies at any time knew, or in the exercise of. due and reasonable care and diligence could or should have known, nor were they reasonably bound to anticipate, that said waters were likely and liable to attain, or that they ever would attain flood conditions of volume and depth substantially as or nearly approximating the extreme volume and height of 31.1 feet at the Mt. Carmel gauge or the unprecedented rate of rise set forth in special finding No. 20, was likely to ever occur con
Had said inter-highland section of railroad, as hereinabove described, existed during the aforesaid flood of August, 1875, the total amount of openings for water passage through said railroad and the ratio and proportion of total openings to total obstructions would not have been adequate to permit the said waters to flow in sufficiently natural manner to avoid some degree of material and recoverable damage and injury to the “Bilderback forty” by the deposit of - earth, sand and gravel thereon and thereover, all in the manner as hereinabove particularly found; but were and would have been adequate to avoid such injury and damage to the great extent that was by said “Bilderback forty” thereby suffered in 1913, as aforesaid. At all times prior to the March flood, 1913, defendants and each of them knew, or in the exercise of reasonable. care and diligence could and must have known, and were reasonably bound to anticipate, that by reason of the said obstruction and the inadequacy of openings therein, all as aforesaid, some degree of material and recoverable damage and injury to said “Bilderback forty” by deposit of detritus thereon, as aforesaid, was likely and liable to occur and would occur; but neither defendant at any time knew, nor could or should have known, nor was bound to anticipate, that the extent and measure of said damage and inquiry would be so great as it actually was during1 the March flood, 1913; that is to say, that the entire damage and injury to said tract was not proximately caused by the unprecedented volume of water, but the degree and extent of the damage and injury was by the unprecedented volume of water accentuated and augmented; that, by no act of negligent omission or commission did plaintiff in any degree contribute to any of the aforesaid damages and injuries to any part of her
By reason of said washout, and the conditions attendant thereupon, the waters so operated as to scour, gouge out and excavate at, below and about said washout a
The unreasonable and improper construction of the inter-highland section of railroad materially contributed to the washout and the consequence thereof; that said washout and its consequences would not and could not have occurred except for such improper construction; but said washout and its consequence were primarily and proximately caused by the unprecedented character of the March flood, 1913, with respect to volume and sudden rise of the Wabash river at said point, rather than by the unreasonable and improper construction; that had said flood not been of the unprecedented character the washout and its consequence would not and could not have occurred, notwithstanding the improper construction; that neither of the defendants at any time knew, nor in the exercise of due and reasonable care and diligence' could or should have known, nor were ever reasonably bound to anticipate, that even in view of said improper construction the Wabash river flood waters were likely or liable to rise, or that they ever would or could rise at said point at such unprecedented rate and to such unprecedented height as to cause such washout and its consequences nor in any washout or breakage of said embankment at said point; and that any washout or breakage of the embankment at or near
On the foregoing facts the court stated the following conclusions of law: “(1) That the construction by defendant Evansville, Mt. Carmel & Northern Railway Company of the inter-highland section of railway hereinabove described, in manner, form and condition, all as hereinabove found, was a careless and negligent act and proceeding by and on the part of said defendant. (2) That the maintenance by both defendants herein of the inter-highland section of railway hereinabove described, in manner, form and condition, all as hereinabove found, was a careless and negligent act and proceeding by and on the part of both said defendants and each of them. (3) That in respect to the losses and injuries to the Bilderback forty, hereinabove described, and all as hereinabove found, the law is with the plaintiff and the plaintiff is entitled to recover upon her complaint herein a judgment against both defendants for $1,324.00 damages, and for the costs in this action laid out and expended and properly taxed. (4) That although the losses and injuries to the Watts quarter section herein-above described, and all as hereinabove found, was materially contributed to by the negligent acts of defendants herein, and each of said defendants, neither of said defendants is liable, and said defendants are not liable, to respond in damages therefor, for the reason that no losses and injuries whatever of the character found could reasonably have been expected or anticipated to result from said negligent acts or either of them; and that no judgment in damages for said losses should be rendered herein.”
The first objection to the complaint presented by the memorandum to the demurrer is that the complaint shows affirmatively that the injury to appellant’s lands for which she seeks recovery was occasioned by the action of surface water, the flowage of which appellees had
It has been held by this court that the same duty imposed by this statute rested on railroad companies at common law and that the statute simply declares the common-law rule. Chicago, etc., R. Co. v. Luddington (1910), 175 Ind. 35, 91 N. E. 939, 93 N. E. 273. In the case of Cleveland, etc., R. Co. v. Wisehart, supra, it is said: “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.”
It is frequently less difficult to make a statement of the rules of law than it is to make a correct application of those rules to the case in hand as disclosed by the record. As bearing on the question of due care in the
- It is further shown by the special finding that the Evansville company, at the time of planning and constructing the inter-highland section of its railroad, and that both appellees, during the time such structure was maintained, knew or could have known by the exercise of ordinary care that the flood waters of the Wabash river were likely to attain the height and volume reached by the flood of August, 1875; and that, in view of changed conditions in respect to tiling and drainage of lands and denuding them of forests, thus facilitating the flow of water into the Wabash river and its tributaries, they should have foreseen by the exercise of due care that a slight additional depth might likely occur at the Mt. Carmel gauge.
The court finds facts specifically and in detail which show that the conduct of appellees in the construction and maintenance of their road-bed at the place described did not measure up to the legal standard of ordinary care. They were therefore, guilty of negligence and were legally bound to answer in damages for all resulting injury of which such negligence was the direct and proximate cause.
With respect to the “Watts quarter section,” the court
By its fourth conclusion of law the court announced that appellees were not legally liable to respond in damages for the injury thus caused to the tract of land known as the “Watts quarter.” The correctness of this conclusion- is challenged by appellants’ assignment of errors.
It cannot be said that there was no relation or causal connection between the negligence of appellees in failing to provide adequate openings to accommodate the flow of water in times of floods such as could have been reasonably anticipated, and the height of water attained at the place by the flood of 1913. The trial court found in effect that the failure of appellees to provide such adequate openings dammed back the water and caused it to accumulate on the up-stream side of the embankment to such an extent as to give it a vertical height of four feet in excess of the corresponding water on the down-stream side of the embankment. It thus appears that the negligence of appellees operated in conjunction with the unprecedented flood in causing the water to rise to such a height as to overflow the surface of embankment and to erode and wash it away with all the consequences which ensued, as specifically shown by the special finding.
The'specific finding of the trial court on this question is: “The unreasonable and improper construction of the inter-highland section of its railroad materially contributed to the washout and the consequences thereof; that said washout and its consequences would and could not have occurred except for such improper
A well-known author on the law of negligence states the rule applicable to such a state of facts in the following language: “It is universally agreed that, if the damage is caused by the concurring force of the defendant’s negligence and some other cause for which he is not responsible, including ‘the act of God’ or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage, within the definition already given. It is also agreed that, if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff’s damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which, concurring with his own negligence, produced the damage. But if the superior force would have produced the same damage, whether the defendant had been negligent or not, his negligence is not deemed the cause of the injury.” 1 Shearman and Redfield, Negligence (5th ed.) §39, and cases cited in support of the text.
Applying the law as stated to the facts as found, the court is of the opinion that the negligence of appellees was a direct and proximate cause which operated in conjunction with the act of God in producing the injury to the land designated as the “Watts quarter.” The trial court erred in the law as announced in its fourth conclusion.
The preceding discussion disposes of most of the ques
The other questions presented by the brief under this assignment of error are of such minor importance that the rulings of the court in reference thereto, even if erroneous, would not constitute reversible error.
As to the errors assigned by appellant, the judgment is reversed, and, as to the cross-errors assigned by appellees, the judgment is affirmed. It is therefore ordered that the court restate its fourth conclusion of law in conformity with this opinion and so modify the judgment as to conform to the conclusion of law as restated.