Brinkley v. Norfolk Southern Railroad , 168 N.C. 428 ( 1915 )

The first assignment of error cannot be sustained, because the record fails to disclose what would have been the answer of the witness or what the plaintiff expected to prove. Lumber Co. v. Childerhose, 167 N.C. 40. The evidence both for the plaintiff and the defendants was to the effect that the ponding of water referred to in 1910 was the result of an extraordinary rainfall, and we cannot infer from the evidence what the opinion of the witness as to its effect if the drainage had been properly put in, and cannot see that the answer would have been favorable to the plaintiff.

The second and fourth assignments of error present substantially the same question, and we see no reversible error in permitting the witness to answer the questions propounded.

In the first place, in the absence of any evidence, an intelligent jury would know that a basement in a damp, soggy place, without a concrete floor, would not be free from the danger of seepage. And again, the record shows that there was really no dispute as to this fact.

The plaintiff testified: "The rear end of our warehouse was built on soft land. The only way that water could come into our basement had to come by seepage or going under the walls and rising up. We have no concrete walls in our basement," and a witness for the plaintiff, S.D. Pruitt, who was manager for the warehouse company, said: "Our boiler-room is built right down close to the edge of this run. If you build a house on springy land and don't put in a concrete floor, the water will rise in it."

(432) The third assignment of error is without merit, because if the question was objectionable, the answer of the witness could not affect the controversy. He said in reply to the question, "I don't know who put in the second pipe, whether the railroad or town."

The minutes of the board of aldermen, the subject of the fifth assignment, showing the appointment of engineers to construct the drainage for the town of Greenville, was competent upon the question of the exercise of due care.

The questions asked E. H. Evans, referred to in the sixth assignment of error, and the answers thereto, are as follows:

Q. Knowing, as you do, that ditch, and knowing the size of that tile, and knowing the usual rainfall in this community, have you an opinion satisfactory to yourself as to whether that tile is sufficient to carry off that water that comes down that ditch in ordinary rainfall? A. "I should say it was."

The fact embodied in this question and answer was not in dispute, as there is no evidence upon the part of the plaintiff that the plaintiff was injured by ordinary rains or that the pipes would not carry off such rains.

The civil engineer introduced by the plaintiff testified: "I think the drainways in question are sufficient to take off the water in ordinary times."

D. S. Spain, a witness for the plaintiff, said: "Whenever the ditch was full of water it was after a heavy rain; I never saw that condition after an ordinary rain."

The seventh assignment of error is not supported by the record, which shows that before the witness was permitted to answer, the court asked him about the construction of the cellar, and that he said: "It was very much the same as now."

We might decline to consider the exceptions in the eighth assignment of error upon the ground that they do not conform to our rules, but we have examined the entire charge and the exceptions to it taken by the plaintiff, and find nothing of which he can justly complain.

His Honor charged the jury, among other things, as follows:

"What duty did the town of Greenville and the railroad company owe the plaintiff? The town of Greenville had the right to, and it was the duty of its board of aldermen to exercise their discretion in grading and improving the streets of the town, and in doing that they improved this avenue and raised the surface of the street, placing drains under it for the purpose of carrying away the water which naturally came across it from the land of the plaintiffs, and the duty they owed plaintiffs under these circumstances was to provide the streets with sufficient drains to carry off said water without injury to the plaintiffs.

"It was the duty of the town of Greenville to exercise ordinary (433) and reasonable care in the improvement of its streets to provide for such rains as could with the exercise of ordinary care be foreseen, taking into consideration the weather conditions in the community in which the work was done. The plaintiffs allege that the defendant town of Greenville failed to exercise this care, and was thereby guilty of negligence, and that the railroad company participated in this, and there was evidence tending to show that the railroad company took up the first drain pipe across Dickinson Avenue and put that down again, and still another, and that a bulkhead was placed against plaintiffs' property through which these drain pipes ran. The allegation is that these two pipes are not sufficient provision against ordinary rainfalls, that could be foreseen with the exercise of ordinary care. The defendant town of Greenville can't be held liable because it failed to make provision against extraordinary rainfalls, a cloudburst, or unusual or unexpected rain which could not be foreseen in the exercise of ordinary care by a man of reasonable prudence, and the same rule applies to defendant railroad. You can only answer this issue as to the defendants if they failed to exercise reasonable care to provide against the ordinary conditions which a man of reasonable prudence could have foreseen were likely to happen in reference to this drainway. They only fail in duty when they fail to exercise ordinary care and prudence.

"The law holds the city liable where they fail to exercise that care and where their failure to do so is the cause of injury such as is alleged in this case. You will note that it must be a breach of a duty that the defendants owed to the plaintiffs that justifies the finding upon these first two issues, and the only duty that the defendants owed the plaintiffs in this case was to exercise ordinary care to provide such drains as to remove without injury to plaintiffs such surface water as from experience and knowledge of the past might be reasonably anticipated to fall and to be ponded against. They are not required to provide against such extraordinary and excessive rains as could not be reasonably foreseen and provided against."

This imposed upon the defendants the duty of exercising ordinary care and made them liable for negligence, which is in accordance with our authorities. Dorsey v. Henderson, 148 N.C. 423; Hoyle v. Hickory,164 N.C. 79.

We find no error upon the record.

No error.

Cited: Wilson v. Scarboro, 169 N.C. 658; Newbern v. Hinton, 190 N.C. 111.

(434)