Lyon v. Chicago, Milwaukee & St. P. Ry. Co. , 45 Mont. 33 ( 1912 )

MR. JUSTICE SMITH

delivered the opinion of the court.

The complaint in this action charges that on the third day of June, 1908, and for a long time prior thereto, the defendants were engaged in the construction of a railroad grade and roadbed through the county of Granite, and through and adjacent to the premises of the plaintiff; that they constructed said roadbed and grade close to the Hellgate river, and in so constructing the same at and near the premises of the plaintiff they “negligently made and caused to be made an excavation and cut [hereafter called a ‘borrow pit’] close to said river, and to a depth below the natural bed of said river, and negligently removed and caused to be removed from said cut and excavation material for their roadbed without permitting an embankment of sufficient size or strength to remain, so that said river would stay in its natural channel, by reason whereof, on or about the third day of June, 1908, the said river left its natural channel, and by reason of the insufficiency of said embankment the same was washed away by said river so leaving its natural channel, and the water of said river flowed through the aforesaid cut to and upon the premises of plaintiff, flooding said premises and depositing thereon large quantities of gravel and sand,” destroying her crops and filling up her ditches, etc., to her damage in the sum of $8,800. The defendants answered separately, to the effect (1) that they were not guilty of the alleged acts of negligence complained of; (2) that plaintiff was guilty of contributory negligence in failure to use due care in the construction of her ditches; and (3) that the alleged damages were the result of “an unusual, excessive, and unprecedented rainfall and flood which no care, caution, or human foresight could have prevented,” to-wit, of what is commonly termed an- “act of God.” These affirmative allegations were put in issue by a reply. The cause was tried to the district court of Granite county sitting with a jury. A verdict for the plaintiff in tbe sum of $2,000 was returned. From a judgment on tbe verdict, and also from an order denying a new trial, tbe defendants bave appealed.

Tbe record contains over 800 printed pages of evidence. After patiently reading tbe same, we conclude as follows:

1. "Whether tbe embankment (called in tbe testimony a “berme”) was negligently allowed to remain in tbe condition in which it existed during tbe first three to five days of tbe month of June, 1908, was a question of fact for tbe jury to decide.

2. It was proven beyond controversy that a great flood and high water occurred at about tbe time in question, and was of extraordinary height and violence on either tbe third, fourth or fifth day of tbe month.

3. "Whether tbe berme went out, or was washed away, on tbe 3d of June, before tbe period of extraordinary high wkter and on account of tbe negligent manner of its construction, or on a later date, by reason of tbe force of tbe unprecedented flood, was likewise a question of fact for tbe jury to determine.

1. The court, by instruction No. 3, advised tbe jury as follows: “Tbe only burden tbe law imposed upon the railway company when it made said borrow pit was to leave sufficient space between it and tbe river to prevent tbe ordinary flood waters of tbe river, and such floods as could bave been reasonably anticipated by tbe exercise of ordinary foresight and prudence, from breaking through tbe said space or berme so left; and if tbe railway company did so leave sueb space or berme at tbe place in question, tben no liability attached to it on that account. Therefore,, before you can return a verdict for the plaintiff in this action because of the making of the said borrow pit or excavation at the place in question, you must find from a preponderance of the evidence that the space between the'borrow pit and the river was unskillfully, carelessly, and negligently left so narrow and weak as that it would not resist or sustain the weight of the waters of the said river at ordinary floodtime, and at such floods as could have been reasonably anticipated by the exercise of ordinary foresight and prudence, and that such negligent and unskillful construction of its road was the direct cause of the damage to the plaintiff’s land, and, unless you so find, then said defendant did all that it was in law required to do, and your verdict must be for the defendants on this issue.”

The court also gave instruction No. 5, as follows: “The court instructs the jury that it was not the duty of the defendant railway company to foresee and prepare against unprecedented floods as such floods are herein defined; in other words, it was not its duty to prepare against the act of God. Its duty was to prepare against only ordinary flood waters, and such floods as could be reasonably anticipated by the exercise of ordinary foresight and prudence. If, therefore, you find by a preponderance of the evidence the defendant railway company exercised ordinary prudence and care in the construction of its railway, considering the character and nature of the stream, the lay of the territory which it drained, and the ordinary floods which occur in that vicinity, and such floods as could be reasonably anticipated by the exercise of ordinary foresight and prudence, then said defendant was not guilty of negligence in the construction of its railroad at the place in controversy.”

The court’s instruction No. 6 reads as follows: “Before the plaintiff can recover against the defendants, the plaintiff must show that the proximate cause of the injury or damage to plaintiff’s land and property was the negligence of said defendants; it must appear from the evidence that the injury or damage was the natural and probable consequence, of the negligence of the defendants, and that said injury or damage ought to have been foreseen by defendants in the light of the attending circumstances. The first requisite of the proximate cause is the doing or omitting to do an act which a man of ordinary prudence could foresee might naturally and probably produce the injury complained of; and the second requisite is that such act or omission did actually cause the injury. If, therefore, you find from a preponderance of the evidence that in making said borrow pit, as the evidence shows it was made, a person of ordinary prudence would not have foreseen the flood of June, 1908, or if you find that said lands of said plaintiff would have been injured» had said borrow pit and berme never existed or been made, then the making of said borrow pit and berme, as the evidence shows the same was made, was not the proximate cause of the injury .or damage to plaintiff’s land and property, and defendants are not liable in law.”

No. 7 reads thus: ‘‘The court instructs the jury that if you believe from the evidence in this case that the defendant railway company constructed its railroad in a manner approved by competent civil engineers, and so as to resist the ordinary recurring floods or rises in the Hellgate river, and such floods as could be reasonably anticipated by the exercise of ordinary foresight and prudence, and that the same did withstand and resist.the flood of 1908 until after it had passed all previously known high-water records, and that when the rise in the river or flood had passed such known high-water marks the waters washed away the property of the plaintiff, then said defendants were not guilty of negligence; but the accident was the result of the unusual flood and high water, and what is commonly called the act of God, and your verdict should be for said defendants.”

We think these instructions fully covered the main issue in the case and rendered further directions unnecessary. However, the court also gave this instruction: ‘‘No. 10. You are further instructed that by the act of God is meant those events [1] and accidents which proceed from natural causes and cannot be reasonably anticipated or guarded against, such as unprecedented freshets, floods, earthquakes, cyclones, lightning, and such like. For injuries occurring by any of these means, there is no liability, provided reasonable and ordinary care is exercised to guard against such occurrences.” In our judgment, this instruction does not correctly state the law. It, in effect, declared the defendants responsible for failure to anticipate and guard against an act of God. We quote with approval the following language taken from the opinion of the court in Kansas City P. & G. R. Co. v. Williams, 3 Ind. Ter. 352, 58 S. W. 570: “The rule of law in such cases is that the defendant is only required to take precautions against ordinary storms which occur in the vicinity; and if the damage would have occurred by the act of God, notwithstanding the obstruction, even if there were negligence on the part of the defendant, damages cannot be recovered. * * # In this ease, unlike most eases in which the act of God is invoked as a defense, the act of negligence did not occur during the storm, or after it was over. Therefore the act is only made a negligent act by comparison with the duty which defendant owed before the storm. It was not defendant’s duty to foresee and prepare against an unprecedented storm; in other words, it was not defendant’s duty to prepare against ‘the act of God.’ Its duty was only to prepare against ordinary storms.” (See, also, Coleman v. Kansas City, St. J. & C. B. R. Co., 36 Mo. App. 476; Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115; Baltimore & O. R. Co. v. Sulphur Spring Ind. School Dist., 96 Pa. 65, 42 Am. Rep. 529; American Locomotive Co. v. Hoffman, 105 Va. 343, 8 Ann. Cas. 773, 6 L. R. A., n. s., 252, 54 S. E. 25; Eagan v. Central Vermont Ry. Co., 81 Vt. 141, 69 Atl. 732; Emery v. Raleigh & G. R. Co., 102 N. C. 209, 11 Am. St. Rep. 727, 9 S. E. 139; Missouri K. & T. Ry. Co. v. Bell (Tex. Civ. App.), 93 S. W. 198.)

The court also gave, instruction No. 11, as follows: “You are further instructed that, even if you should find that the flood in question was unprecedented, still if you find that the embankment was defective, due to its insufficiency as to height or thickness, or as to the material constituting it, and the defendants knew that, or in the exercise of reasonable care could have known it, and failed to make the embankment or berme reasonably safe, and the washing of it away was due to its insufficient and defective condition, the defendants would then be responsible for the damages occasioned by the washing away of the berme, even though you should find that the flood in question was unprecedented in character, so as to constitute what is known as the act of God.” This instruction is complained of, as are also others of the same tenor. We think the criticism is merited.

It is unnecessary to further analyze the instructions. The whole controversy on this branch of the ease simply resolves itself into a question of proximate cause. The law is that if the berme was washed away by the ordinary flood waters of the stream by reason of its negligent construction, then the defendants are liable. If, on the other hand, it withstood the ordinary flood waters and was washed out by an extraordinary flood or act of God, which would have washed it away and would have caused the same injury to plaintiff’s lands, whether it was properly constructed or otherwise, then the defendants are not liable. If an.act of God alone would not produce injury, but, assuming [2] that there was an act of God, a plaintiff’s loss is made possible by reason of a prior, coincident, or subsequent negligent act of a defendant, the latter is liable, because his act is causa sine qua non. (Meisner v. City of Dillon, 29 Mont. 116, 74 Pac. 130; Mulrone v. Marshall, 35 Mont. 238, 88 Pac. 797; Frederick v. Hale, 42 Mont. 153, 112 Pac. 70.) In the instant case, a sharp conflict was presented whether the berme went out during ordinary high water by reason of its negligent construction or whether it withstood such ordinary pressure, and was only carried away when the flood assumed extraordinary proportions. It is paradoxical to say that the berme, although of negligent construction, withstood the ordinary pressure of the waters, but that the defendant is liable on account of the fact that it was carried away by reason of infirmities in its construction when the flood assumed the proportions of an act of God. Such a situation is not to be considered. As has heretofore been said, the issue was well defined, and upon a retrial it may be simply stated to the jury.

2. Regarding the degree of care required in adopting methods for carrying forward construction work, this court said, in Kinsel v. North Butte Min. Co., 44 Mont. 445, 120 Pac. 797: “It is not the common custom in itself which exonerates; but proof [3] of the custom, coupled with proof that it is the usage of ordinarily prudent and careful men under like circumstances, will absolve (a person) adopting the same * * * method from a charge of negligence, because the degree of care exercised by ordinarily prudent men in the same circumstances is the standard by which a jury must be guided.”

3. This instruction was given concerning the measure of damages: “(19) Nou are instructed that the true measure of [4] damage to the land permanently injured, if the evidence shows any part of the same is permanently injured, is the fair market value of the land on the date of said injury. By market value of the land is meant the value which would be placed thereon if it were offered for sale by one who desired, but was under no necessity, to sell, and bought by one who desired to purchase, but was under no necessity to purchase. Tou will not, therefore, take into consideration any peculiar value which the land might have to the owner, apart from what would be paid by the general public; nor will you consider the owner’s unwillingness, if any appears, to sell the land. Furthermore, the value of the property cannot be measured by its value to the party owning it — that is to say, to the plaintiff in this ease; nor can it be measured solely by the plaintiff’s income or net proceeds derived from the particular property, but you may take into consideration the increase or net proceeds of said land, if any, in determining the market value thereof. In fixing the market value of the property, you will consider it simply as a case of a willing seller and a willing buyer; that is, What would the general public pay for said land on the market at its fair cash value ?” This instruction was not objected to and, assuming that it merely lays down a rule for determining the value of land, appears to be unobjectionable. But complaint is made that incompetent testimony was received concerning the value of the injured lands. There was competent testimony on the subject, aside from that to which objection was made. Upon a retrial, the court will have an opportunity to scrutinize the evidence offered on this branch of the case, so as to confine it within the rule of the instruction.

The judgment and order are reversed, and the cause is remanded for a new trial.

Reversed and remanded.

MR. Chief Justice BraNtly and Mr. Justice Holloway concur.

Rehearing denied March 1, 1912.