Southern Railway Co. v. Plott , 131 Ala. 312 ( 1901 )

SHARPE, J.

In tlie construction and maintenance of railroads common prudence requires that employment of at least ordinary engineering knowledge and skill to the end of avoiding injury to property which will probably come from the obstruction of natural streams and waterways. While those engaged in such undertaking are not bound to provide against floods of -which the usual course of nature affords no premonition, yet they are bound to use ordinary care to build so as not to obstruct to the damage of others, rainfalls such as may reasonably be expected whether they are likely to be of frequent or of rare occurrence. — C. & W. R. Co. v. Bridges, 86 Ala. 453; Pittsburg, etc., R’wy Co. v. Gilleland, 56 Pa. St. 445; Railway Co. v. Pomeroy, 67 Tex. 498, 30 Am. & Eng. R. R. Cases, 200; International, etc., R. Co. v. Haloran, 3 Am. & Eng. R. R. Cases, 343; Brown v. Pine Creek R. Co., 8 Ib. (N. S.) 693 and notes.

A structure which dams up a waterway and causes the water to spread dangerously from its natural course may amount to a nuisance, and the maintenance as well as the erection of a nuisance, with knowledge of its harmful character, may create a liability for resultant injuries. — Railroad Co. v. B. N. Y. Co., 51 N. Y. 573; Dickson v. Chicago, etc., R. R. Co., 71 Mo. 575. Though the defendant acquired the railroad after the embankment complained of was built, its character and that of the stream and surrounding country together with common knowledge with which it was legally charged concerning rainfalls to which the country was subject, may have been sufficient to show it had notice of the consequences which would naturally follow from continuing the existing conditions.

There was evidence introduced on the trial sufficient to warrant the jury in finding defendant liable in damages as alleged in each count of the complaint and which necessitated the refusal of charges 1, 2 and 3.

■ Not infrequently the drifting of timbers is incident to •a flood; and where there are loose timbers along a stream due care in the construction and maintenance of a trestle may call for plans and methods to prevent their lodgment and so prevent them obstructing the water. Charge 9 refused to defendant improperly pretermitted inquiry as to defendant’s fault in this respect, and charge 10 had a misleading tendency to confine the inquiry to negligence -vel non• in respect of the presence and accumulation of drift wood only.

There was no error in refusing to allow the witness Jemison to state “wliat other points along the line of road in the county of Lamar that same night w7ere damaged that had never been damaged up to that time.” To have pursued the investigation proposed by the question would have engendered an unprofitable multiplication of issues.

The judgment will be affirmed.