G., C. & S. F. R'y Co. v. Holliday , 65 Tex. 512 ( 1886 )

Willie, Chief Justice.

The appellant complains that the district judge who tried this case, did not cause its two bills of exceptions to be filed during term time and within ten days after the conclusion of the trial. They were presented and approved in due time, and, if they were not duly filed, the appellant must be held responsible; for it is the duty of the party bringing a case to this court to see to its proper preparation for an appeal. The record does not disclose that it was through the fault of the judge or of the appellee that the bills were not filed, and we have no other evidence to this effect. The presumption as to negligence is, therefore, against the railway company, and it cannot complain if these bills of exceptions are not legally before this court.

Admitting, however, that the bills are in such shape that we can . consider them, we think the exceptions reserved by them are not well taken. The evidence of Millican and Parker, to the effect that the rise in the Brazos river in 1885 was greater than in 1884, was admissible as a circumstance, which, taken in connection with the proof as to previous overflows, tended to show that the flood of 1884 was an occurrence against which ordinary and reasonable care would have provided. Mayor v. Bailey, 2 Denio 441; Gray v. Harris, 107 Mass. 494.

The defendant had pleaded that the overflow of 1884 was an extraordinary and unusual flood, and one against which human foresight could not make preparation. To meet this plea the plaintiff introduced evidence of freshets occurring at different intervals for a series of years previous to 1884. Some of these were as great, if not greater than the one by which the plaintiff was damaged. This was proof that such rises in the river were liable to occur at any time. They were to be regarded as ordinary, because well known to take place in the stream occasionally through a period of years, although at no regular intervals. Gould on Waters, sec. 211c. And, as strengthening the proof of their ordinary character, it was proper to show that they still continued to occur, and that the habit of the river in this respect had not changed since former freshets. If this had been the only proof as to overflows in the river, it would have been inadmissible, but, following proof of former rises, it tended to show a continued liability of the river to such freshets at and about the time the railway was constructed through the bottom.

The evidence of Thomas was admissible. Our Revised Statutes leave it largely within the discretion of the trial judge as to the admission of testimony, and defects in proof may be supplied at any time before the conclusion of the argument. R. S., art. 1298.

Thomas’ testimony was confirmatory of the prima facie case already made by the plaintiff, and fortified it upon points wherein it had been attacked by the defendant’s witnesses. This court has reversed a judgment below for a failure of the judge to admit such evidence. Markham v. Caruthers, 47 Tex. 21. Besides, it seems that proof as to the topography of the country where the injury occurred was opened by the defendant, and Thomas’ evidence was strictly in rebuttal of this proof.

There was no error in the charge complained of in the third assignment of error, nor was there error in refusing the third special charge asked by the appellant. Railway companies are required by our statutes, in constructing their roads, to take into consideration the natural lay of the land, and to construct the necessary culverts or sluices for its necessary drainage. R. S., art. 4171. That they must use proper care in this respect, so as not to obstruct the waters of ordinary floods to the damage of adjacent lands, is settled by the decisions of this court. I. & G. N. R’y Co. v. Parker, 50 Tex. 342 ; G., C. & S. F. R’y Co. v. Helsley, 62 Tex. 594.

The use of such care as a prudent man would exercise in reference to his own affairs requires that they take into account the probabilities of overflows, and, in estimating these, they must consider what effect the size and length of the river near which they are building may have in producing them, as well as the number and frequency of former floods. They may not be required to provide against an unprecedented rise in the river, but that can not be called unprecedented which has occurred every three, four or five years for more than a quarter of a century, nor can that be called extraordinary which is but the natural result of the length and size of the river, taken in connection with a fall of water liable to occur at intervals, though separated by several years from each other. As it was not a matter of law that a railway company is excused for failing to construct its road-bed, culverts and ditches in such manner as to afford free passage and egress to water, because it comes from a large river and from a great distance, the court was not authorized to so charge the jury. The questions submitted to the jury were: Has the company constructed its road and waterways with proper care and diligence, taking into consideration the liability of the country to overflows, and so as to guard the adjacent land from damage to the same extent as it was previously protected? Was the flood which caused the damage to the plaintiff one to which that vicinity was liable, or was it an extraordinary freshet, which could not be foreseen or anticipated ? As to what effect the facts before the jury might have in determining these questions, it was for them to determine. They could take the length and size of the river into consideration, the topography of the country, the frequency of former floods, the manner in which the road was built, and the sluices and culverts constructed. From these and other facts before them they could answer the court’s questions, and thus determine for themselves whether the damage was owing to the negligence of the railway company or not. The question of negligence was for the jury to determine, but the charge asked by the appellant would have taken its main and essential ingredient in the present case from them, and had it passed upon by the court.

The question of whether or not the flood of 1884 was an extraordinary one being for the jury, the court properly refused to give the sixth special charge asked by the appellant, made the subject of the seventh assignment of error.

The court’s charge as to the measure of damages did not prejudice the case of the appellant. The jury found no interest except from the date of the verdict. The minimum value of the crop destroyed, us proven by the evidence, was greater than the amount of damages assessed by the jury. The charge, too, would seem to be correct. “The injured party ought to be put in the same condition, so far as money can do it, in which he would have been if the tort had not been •committed.” 1 Suth. on Damages, 174. ‘ ‘Interest is as necessary to the complete indemnity as the value itself.” Ib.; Ingram v. Rankin, 47 Wis. 406 ; McCormick v. Penn. Cent. R’y Co., 49 N. Y. 303 ; Hamer v. Hathaway, 33 Col. 117; Wallace v. Finberg, 46 Tex. 35 ; Blum v. Merchant, 58 Tex. 400. The question as to damages before the jury was: What was the value of the crop growing upon the land at the time it was destroyed by the flood? This was what the plaintiff lost, and the value of it, if paid to him at the time of the loss, would have afforded him compensation. Had it been shown that he would have been able, by reasonable diligence, to save a portion of the crop from the flood, or to sell it in its damaged condition, there might have been some reason for giving the fifth special charge asked by the appellant. But what he might have made, had he planted and cultivated another crop, was too uncertain to base upon it any estimate as to the amount by which his damages should be reduced. It was not allowable for the plaintiff to claim as damages- what his destroyed cotton would have produced had it survived till harvest time, and, upon the same principle, his adversary could not compel him to reduce his damages by the supposed value of such contingent profits. Besides, the fact that other persons in the neighborhood raised crops after their first planting had been destroyed, furnished no criterion to determine what he could have made, when the value of their crops and the expense of raising them was not shown. Moreover, it was proved by uncontradicted evidence that the overflow left the plaintiff’s land in such condition that it could not be replanted in time for another crop.

The ninth assignment of error is but a grouping together of various matters of fact which, it is alleged, the jury should have found for the appellant, instead of the appellee. There was evidence to support the jury’s finding upon all these points, and it can not, therefore, be disturbed.

The tenth assignment of error is too general to demand consideration.

There is no error in the judgment, and it is affirmed.

Affirmed.

[Opinion delivered February 19, 1886.]