Hunter v. Pelham Mills , 52 S.C. 279 ( 1898 )

The opinion of the Court was delivered by

Mr. Justice Pope.

This action was commenced in the Court of Common Pleas for Greenville County, in this State, on the 8th day of October, 1896, for damages. It was tried before Judge Ernest Gary and a jury at the March, 1897, term of said Court. The verdict was for the plaintiff in the sum of $300. After entry of judgment on the verdict, the defendant appealed to this Court. The complaint, the charge of the Judge, and the grounds of appeal will be reported. ' Before passing to the consideration of the questions raised by appeal, it may not be amiss to state, that by the case for appeal, it is made to appear, that as the cause above stated was one of eleven, by different plaintiffs against the same defendant, and all involving precisely the same issues, the following order was, by consent, passed by the Court: “The State of South Carolina, county of Greenville. In Common Pleas. J. D. Hunter, plaintiff, against The Pelham Mills, defendant. Frank C. Mann against Same. Thomas M. McFlreath v. Same. Jane McElreath v. Same. Z. R. Holley v. Same. G. W. Durham v. Same. Boyce Durham v. Same. James Gray v. Same. W. H. Durham v. Same. R. E. Hughes v. Same. E. B. Hughes v. Same. By consent of counsel on both sides of the above stated cases, it is ordered, that all of said causes be tried at the same time, and all.questions of law and fact arising and determined shall be conclusive on all parties concerned, except that in the event that the jury determine that the plaintiff, J. D. Hunter, is entitled to damages as claimed, they shall ascertain the amount thereof and so report by their verdict, and that it be referred to the master to ascertain and report the amount of damages to which the other plaintiffs are respectively entitled. In the event that the jury shall find for the defendant, the same verdict shall be entered in each of the other cases. The right of appeal upon any and all questions arising is expressly reserved in behalf of any and all said parties, plaintiffs and defendants. Ernest Gary, presiding Judge. We consent. C. F. Dill, C. J. Hunt, Shuman & Dean, plaintiffs’ attorneys. Cothran, Wells, Ansel & Cothran, attorneys for defendant.”

Testimony was then offered by the plaintiff tending'to prove that he owned a piece of bottom land on the Enoree River, on the Greenville County side; that twenty acres of said bottom land was planted in corn and pumpkins; that said lands were very rich and productive, yielding from fifty to sixty bushels of corn per acre, and that the corn was worth fifty cents per bushel, and that the fodder therefrom was valuable, as well as the pumpkins, in money; that the corn on said bottom land was six or seven feet high on Friday 'morning, the 10th of July, 1896, and that the rains which had fallen on Monday, Tuesday, Wednesday, and Friday morning, while they had raised the volume of water flowing in the Fnoree River, had not, up to that time (Friday morning), injured the corn and pumpkin crops growing on the plaintiff’s bottom land; that about midday there was some rain which fell about the plaintiff’s land, but the clouds seemed to lay up the river; that the defendant had the mills known as the Pelham Mill on the banks of the Enoree River, about seven miles higher up the said Reedy River, above the lands of plaintiff; that defendant had a large stone dam across the said river, which backed the water some one and one-half miles, and held a large body of water; that about midday on Friday, the 10th of July, 1896, the defendant, through the means of two floodgates in its stone dam, turned loose large quantities of mud and water from its reservoir in said river, made by the said stone dam, when the water was about fifteen feet in depth, into said already swollen river, which caused the said river to throw over the plaintiff’s lands water to the depth of from seven to ten feet, accompanied by large quantities of mud, which remained in said bottom lands from Friday after the 10th of July, 1896, until the-Monday then succeeding, by means of which water and mud the crops of the plaintiff on his said bottom lands were completely ruined; that on a previous occasion the plaintiff had remonstrated with the agent of defendant as to the injurious effect of “blowing out” (that is, turning loose the water in its reservoir so as to discharge said water with such force and violence as to rapidly empty the water held by said reservoir, and also carry away with said water the large quantities of mud which had accumulated in said dam).

After the plaintiff had announced that he closed his testimony, the defendant made a motion for a nonsuit upon these grounds: 1. That the cause of damage was the flood alleged by the complaint to have been an unusual one and amounted to the vis major. 2. That there is no evidence showing that the damage to the plaintiff was the result of defendant’s negligence. The Circuit Judge promptly overruled this motion, to which ruling the defendant then excepted. This is made an alleged reversible error in the Circuit Judge by the appeal.

1 It seems to us that exception 1, as stated in the notice of motion for a nonsuit, was properly overruled, for there was some evidence which tended to show that the injury to plaintiff resulted from the opening of these floodgates in defendant’s stone dam; an unusual quantity of water and mud was testified to have been precipitated upon the bottom lands of plaintiff by this action of the defendant. It was a question for the jury to determine, and not the Judge, if there was any testimony supporting plaintiff’s theory of the cause of his injury; we have repeatedly held that the Circuit Judge must not grant a nonsuit where there is any legal or competent testimony supporting plaintiff’s cause of action.

2 And then as to the second exception, pertaining to absence of negligence on the part of defendant, this Court has repeatedly held that negligence is a mixed question of law and fact. Such question mnst be submitted to the jury, under instructions of the presiding Judge showing what constitutes negligence. The case shows that there was some evidence submitted tending to show negligence. This being so, there was no error in the ruling of the Circuit Judge as to this phase of the motion for nonsuit.

The defendant then offered its testimony, which tended to show that an unusually heavy rainy season had obtained in that section where its property was located, but that, in addition thereto, there fell during the day of Friday an immense quantity of water, which caused the Fnoree River to rise rapidly and to a considerable height in an hour; that this heavy rainfall caused said Bnoree River to rise to a great height, even after the defendant’s agents had opened two of the floodgates in its stone dam across the river at its mill seat; that the two floodgates were opened by the defendant’s agents to preserve it from an injury through the water before the dam rising to such a height as not only to en- • danger the abutments of the dam itself, but also to threaten to flood two stories of its mill house, which, if it had happened, would have entailed a loss to defendant of $20,000, in its mill house alone. Defendant’s testimony detailed the way in which the dam was constructed, explaining its different parts, showing that it was about 175 yards long, and probably more than twenty feet high. After all the testimony for both sides to the controversy had been concluded, each party made requests to charge. The Circuit Judge charged some of defendant’s requests, but refused or modified others. The appeal is intended to question this refusal of the Circuit Judge, as well as to question the propriety in law of some portions of his charge. We will now examine these matters.

3 We will first direct our attention to the second ground of appeal, relating to the modification made in the first request to charge, as it was preferred by the defendant, by the Circuit Judge, adding thereto these words: “If the necessity to raise such floodgates was caused by such a rise in the river, that one of ordinary prudence and foresight could not have anticipated it.” The request to charge was in these words: “The plaintiff having alleged in his complaint that there was an unusual flow of water in Bnoree Diver at the time the floodgates were raised, and this fact being admitted in the answer, it becomes a fact in the case that cannot be disputed by either side; and such being the fact, I charge you that if it became necessary for the de- ' fendant’s protection to raise the floodgates, they had the legal right to do so.” In order to pass upon this exception, it is necessary to remember, in the first place, that section 26, of article V., of our present Constitution, imperatively demands that while Circuit Judges shall not charge juries on matters of fact, they shall declare the law. By this constitutional provision, we have previously held, it is not meant that Circuit Judges shall do more than declare the law applicable to the cause then being tried. So, now, in the second place, let us determine what kind of a cause was then before the Court. As we remarked at the opening of this opinion, this was an action by the plaintiff against the defendant to recover damages, which damages was limited by the complaint to $600, arising from this cause of action; the plaintiff owned a valuable piece of bottom land containing twenty acres, planted in corn and pumpkins, which crops were in fine growing condition until on Friday evening, the 10th of July, 1896, the same were covered to the depth of nine or ten feet, by the water of Enoree River, by water and mud discharged into said stream, which, at that time, had in its banks and flowing through its natural channel more than the usual quantity of water on account of recent rains; and the defendant well knew this fact; by the ■defendant causing two floodgates in its rock dam, extending across said river, and which rock dam by its height caused an immense volume of water in said river to be dammed up, to be opened, and to remain open from Friday, the 10th day of July, 1896, until the Monday succeeding, whereby the flood of water and mud, precipitated upon and remaining for three days upon plaintiff’s said crops, caused their utter destruction, to his damage, $600. To this cause of action, on the part of the plaintiff, the defendant admitted that it ■operated its mill on the banks of the Enoree River; that it had erected across said river at its mill, the stone dam referred to in the complaint, and alleged that said dam was constructed on the most scientific principles, and of sufficient ■strength to resist any ordinary or extraordinary pressure of the waters of said river, and also that said dam is capable of containing large quantities of water. The answer further alleges that at the time mentioned in the complaint, the waters of the Enoree River were unusually high, owing to heavy and continuous rains, and were running over said •dam with great force, and threatening to overflow the abutment of the dam and flood defendant’s mills; that to obviate this danger, and to confine the flow of the water within narrower limits and moderate its force, the defendant, with great' care and caution, raised two of its five floodgates in said dam, and thereby obviated said danger to itself and lessened it to lower proprietors. The defendant further alleges that to have allowed the water to run as it was doing, when its two floodgates were raised, would not only have flooded defendant’s mills, but would have caused greater danger to plaintiff’s property than could possibly have happened after raising said floodgates. Briefly stated, our views of this charge of the Judge, as modified, is this: while the plaintiff did set up in his complaint, and the defendant did admit in its answer, that on Friday, the 10th July, 1896, Enoree River did have an unusually large volume of water flowing through its natural channel, caused by recent rains, and thereby such fact became an admitted fact, binding both parties to this controversy, yet that the answer of the defendant put in issue its dam as being constructed on the most scientific principles, and of sufficient strength to resist any ordinary or extraordinary pressure of the waters of said river; and further, the defendant offered proof on these matters; and hence, when the Circuit Judge came to charge upon the defendant’s request in the matter here under consideration, it was entirely proper for him to pause and consider whether a dam, which was alleged by the party who preferred the request to have been built according to the most scientific principles, and in which floodgates had been constructed by it, did not require him, in declaring the law in relation to lifting those floodgates, to see to it that such floodgates in such dam were not to be lifted in the presence of such a rise in the river as could not have been anticipated by one of ordinary prudence and foresight, excepting alone for the protection of the property of the owner thereof from immediate and impending danger. Indeed, we might say that, in our judgment of the law governing such an obstruction in a water course as a dam, the Circuit Judge was almost too liberal in even charging the request with this modification.

4 The third exception relates to the refusal of the Circuit Judge to charge defendant’s second request: “Neligence is the gist of this action. To find for the plaintiff, the jury must be satisfied, from the evidence, that the defendant negligently opened the floodgates of its dam, and , that the raising of said floodgates caused the damage complained of.” It is very manifest that the Circuit Judge sought to protect the defendant from any undue action of the jury, for the very next request, which was: “If the jury believe, from the evidence, that the damage to plaintiff did occur, or would have occurred, notwithstanding the fact that the defendant raised its floodgates, then the verdict must be for the defendant,” the Circuit Judge charged as the law. It is quite true, that the complaint did allege that the floodgates were “negligently and carelessly, and without proper regard for the rights of this plaintiff,” opened by the defendant; yet it must be remembered that there was no testimony offered by plaintiff to disprove, or tending to disprove, that the manner or methods employed by the defendant in the physical fact of defendant lifting its floodgates, was without negligence in the defendant. The fact is, the legal battle was pitched by the defendant, and joined in by the plaintiff, to show that defendant lifted said floodgates to protect its property from the disasters impending over it by reason of the fact that, while the waters of the Enoree River were full, very full, about midday on Friday, the 10th of July, 1896, there was a rain storm in the nature of a “cloud burst” which, added to the full waters of the river, necessitated the raising of the floodgates to save defendant’s dam and mill. The defendant thereby invoked the law of self-preservation, and hence the Judge, no doubt, felt he had better not put any impediment in the way of a full and fair trial of this issue, by laying stress upon the law of negligence, or seemingly restrict the issues within limits narrower than, in his judgment of the law governing such cases as the present, they should be restricted. A “cloud burst” is the act of God. If the flood precipitated into the river by such cloud burst was so overwhelming as to endanger defendant’s dam and mill, although properly located and constructed, then the Circuit Judge instructed the jury the plaintiff could not recover. In his charge the Circuit Judge dwells with, care upon this “cloud burst” or “act of God” theory of defendant, and, in every instance, declares that if the flood which filled the river on the 10th of July was of such a character as to threaten the destruction of defendant’s dam or mill, the plaintiff could not recover. Besides all. these considerations supporting the Judge’s refusal to charge the request, would not the Circuit Judge have, to a certain extent, been trenching upon the constitutional inhibition as to Judges charging upon the facts, if he had said that the gist of the action was negligence, when negligence is a mixed question of law and fact? It seems so to us. The exception must be overruled.

The fourth ground of appeal is disposed of by th.e matters embraced in our consideration of the third ground of appeal, and is, therefore, dismissed.

5 As to the fifth ground of appeal, it appears to us the plaintiff, in his complaint, has effectually put in issue the wilfulness of the defendant in opening the two floodgates in its dam, where he charges “that the defendant * * * without having the proper regard for the rights of this plaintiff, did open its floodgates, &c.” It is true, it is not described in words as “wilfulness,” but it is charged, in effect, that, governed by his will, without regard to reason, the defendant did open these flood gates. We think the verdict, when fairly considered, is responsive to the issues as made by the complaint and the answer. We, therefore, overrule this exception.

6 As to the sixth ground, which alleges error in the Circuit Judge for his refusal to charge the fourth request: “If the jury believe from the evidence that the damages complained of occurred from an act of God and from the negligence of the defendant, occurring ‘coincidently,’ there can be no recovery, unless it be affirmatively proved that if there had been no act of God, the damage would still have occurred.” We think the Circuit Judge properly refused this request to charge, for the reason that it would have required the Judge to say that the act of God, in allowing a “cloud burst,” necessarily required such “cloud burst” to have had the force of a ‘•'■vis major;''’' while, in fact, such “cloud burst” might not have precipitated a fall of rain more than sufficient for an ordinary freshet in the river. Thus, to have justified the defendant’s turning loose the accumulated waters from its reservoir when there was no flood from a “cloud burst” with more power in it than belongs to an ordinary freshet in the river, simply because it was “coincident” with the flood from a “cloud burst,” would not be justifiable. We notice that the Circuit Judge was very careful, in his charge to the jury, to instruct them that “If you find that the plaintiff was damaged by reason of the act of God, he could not recover.” In the form which defendant elected to present the request to charge, there was no error in the Circuit Judge’s refusal to so charge the jury.

7 The seventh ground of appeal ascribes error to the Circuit Judge for charging the jury: (a) “The owner of a dam must use such reasonable care and skill in its construction and maintenance that it will be capable of resisting usual ordinary and expected freshets. A dam must be so constructed, in the first instance, as to be capable of receiving, if necessary, the water that would originate by such pressure and such rains as would be reasonably expected by a man of ordinary prudence and foresight. That is the test.” We are utterly unable to perceive any error in this,charge; but the appellant suggests that there was no call by the issues in the case for such an expression from the Circuit Judge in his charge to the jury. We cannot see how it could be, then, more than harmless error, even if we adopt the views of appellant. -But it occurs to us that the appellant, in its own answer, raised this question, when it alleged that its dam was built in accordance with “the most scientific principles, and of sufficient strength to resist any ordinary or extraordinary pressure of the water of said river.” And, as before remarked, it offered testimony directed to the establishment of these allegations. Then, when the Circuit Judge, in obedience to the constitutional mandate that he must declare the law, called the attention of the jury to the requirements of the law touching the construction of dams across rivers, he but discharged his duty. So, also, the items embraced under subdivisions of this seventh ground of appeal, marked “b,” “c,” and “d,” are disposed of by what we have already stated.

The eighth ground of appeal was abandoned at the hearing before us.

It follows, therefore, that the Circuit Judge did not err as complained of.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed, and the cause be remanded to the Circuit Court to enforce the order of Judge Ernest Gary, which was consented to. by all the counsel engaged in the eleven causes hereinbefore enumerated.