International & Great Northern Railroad v. Jackson ( 1907 )

Appellee, in his third amended petition claims to be the owner of 100 acres of land on Cottonwood Creek, and that in December, 1902, the railway company constructed along the east side of Cottonwood Creek and nearly parallel with the creek for a distance of about 240 feet, and just east of the land of appellee, a dump about 24 feet high; which, it is alleged, by reason of the careless and negligent manner of construction, slumped into the creek, damming up the same. And that appellant also, by reason of a ditch it had constructed, diverted the water so as to cause it to enter the creek above the dam which otherwise would have entered below the same; that by reason of the matters stated about 25 acres of land belonging to appellee was caused to overflow from ordinary rains, and that in April, 1904, and in April, 1905, by reason of these obstructions, appellee's crops to the value of $750, were destroyed; that his land has been washed in holes and hollows and permanently damaged to the extent of $1,000; that the dump, embankment, ditch and obstructions in the channel of the creek were permanent and lasting in their nature; and asked for damages as above stated and an injunction perpetually restraining the further continuation of these obstructions.

The case was tried before a jury and submitted to them on special issues and verdict rendered for appellee in the sum of $853.20 damages, and judgment was rendered perpetually restraining and enjoining the appellant from obstructing the flow of Cottonwood Creek.

Appellant's first and second assignments of error complain of the action of the court in overruling demurrers. These assignments present no reversible error.

Appellant's 3rd, 4th, 5th, 6th, 7th, 8th, 10th and 12th assignments of error will be considered together. These assignments substantially raise the question that the court erred in not submitting to the jury special instructions requested to the effect that if the waters would have overflowed the plaintiff's land and caused the damage complained of, regardless of the obstructions, then the plaintiff could not recover. Also that the railway company would not be responsible for such damages resulting from the overflow which were not caused by the obstructions; and in such case the damages to be charged to the appellant would be limited to what resulted from the obstructions. The principles of law embraced in these charges is recognized in the cases of San Antonio A. P. Ry. v. Kiersey, 98 Tex. 590, and International G. N. Ry. v. Walker, 17 Texas Ct. Rep., 269.

While it is true that the case was submitted upon special issues limiting the plaintiff's right of recovery to what might have resulted from ordinary rainfalls, still there is evidence in the record which tends to show that the overflow in question possibly covered the plaintiff's land, and might have occasioned the damage, independent of the obstructions to the stream complained of by the plaintiff. Some of the charges presented by appellant, and which were refused, are not properly framed; but some present the issue in a general way, and some are so presented as to require a special finding of the jury upon the questions to be submitted; and we think, in view of the facts, it was the right of the appellant to have these questions passed upon by the jury. We do not understand that because a case may be submitted upon special issues, that a party is deprived of the right and privilege to have the jury's attention affirmatively called to an issue asserted by him which has some evidence to support it. We think it was error for the court to decline to submit the issues above outlined.

Appellant's 13th assignment of error is as follows: "The court erred in refusing the 16th special issue asked by defendant to the following effect, 'If you should find any damage to the crop of 1905, you are instructed that if the rainfall in May was an extraordinary rainfall, then the damages, if any, caused by said April rains, if any, should be eliminated from the calculation in estimating the amount thereof. If said crops would have been destroyed by said rainfalls in May anyway, then defendant would not be liable therefor.' " While this charge is not correctly framed, but having reversed the case we call attention to the question raised, so that it may be considered if properly presented on another trial. The charge undertakes to exonerate the defendant on account of extraordinary rainfall. This is not the law. The rainfall must not only be extraordinary, but one that could not, in the exercise of ordinary care, have been foreseen or anticipated. If a charge upon another trial is correctly framed, then we think that the principle to some extent embraced in this instruction should be submitted. Of course, it is true that the plaintiff would be entitled to the value of the crop at the time it was destroyed, independent of what might have subsequently occurred that may have resulted in a destruction. But, while it is true the plaintiff is entitled to recover the value of the crop at the time it is destroyed, if there was a recent subsequent event, for which the appellant would not have been liable, and which would have resulted in the destruction of the crop, the plaintiff's measure of damages would have been limited to what was the value of the crop at the time it was destroyed.

The courts have ruled that, in determining the measure of damages for the destruction of growing crops, the market value at the time of destruction is the rule. Gulf, Colorado Santa Fe Ry. Co. v. Nicholson, 25 S.W. Rep., 54; International G. N. Ry. v. Pape, 73 Tex. 502; City of Paris v. Tucker, 15 Texas Ct. Rep., 241. But these cases, and others of a like kind, state the rule to be that in arriving at the value of growing crops it is permissible to prove probable yield under proper cultivation, the value of such yield when matured and ready for sale, and also the expense of such cultivation, as well as the cost of its preparation and transportation to market. The difference between the value of the probable crop in the market and the expense of maturing, preparing and placing it there will, in most cases, give the value of growing crops with as much certainty as can be obtained by any other method. The tort feasor or wrongdoer must be held responsible for the consequences of his acts; and there can be no sort of question about the liability of the appellant for the injury actually inflicted upon the appellee by reason of the wrongful conduct complained of, and for the damages then resulting the railway company would clearly be responsible; but it does seem to be an anomalous doctrine in sustaining the right of recovery, to permit the jury to consider as elements of damages matters and things which must necessarily have existed subsequent to the time that the second overflow occurred, for which the appellant would not be responsible. If, as a matter of fact, the injury and damage complained of would have resulted from an extraordinary flood of such a character that the appellant could not be held responsible therefor, we do not see how in principle the jury could have considered the probable yield and the probable value of the crop in question if it had been permitted to mature. If an extraordinary rainfall, one for which the appellant would not have been responsible, had destroyed this crop a short while subsequent to the first flood, there would have been left nothing upon which to base an estimate of a probable yield or of future value. Therefore, we are of the opinion that upon another trial, if the evidence is similar to that now shown by the record, that the issue discussed, if properly requested, should be submitted.

What we have just said, in connection with the cases cited, substantially disposes of the fourteenth assignment of error. We are of the opinion that the testimony there stated is admissible. It possibly should have gone further and shown what might have been the probable yield. The cases cited lay down the rule with reference to the measure of damages and the character of evidence admissible.

We are of the opinion that the evidence of the witness Longseere, which the court refused to admit, and which ruling is complained of in the 16th assignment of error, was admissible. The objections urged to it merely went to the weight of the testimony and not to its admissibility.

We pretermit a discussion of those assignments which raise questions of fact. We have pointed out what we consider to be the reversible errors in the record.

Reversed and remanded.

ON MOTION FOR REHEARING. Appellant and appellee have both filed motions for rehearing. We overrule the motion of appellee without comment, and also overrule the motion of appellant with the statement that, in disposing of the fourteenth and fifteenth assignments of error, we intended to hold that the witnesses whose testimony was objected to were qualified to testify.