Mitchell v. Railway Co. , 116 W. Va. 739 ( 1935 )

I do not agree with the conclusion reached in the majority opinion to the effect that plaintiff's instruction No. 1 could not have misled the jury. In my opinion, the instruction is plainly erroneous and, instead of concluding that because other instructions correctly propounding the law of the case were given this particular instruction could not have misled the jury, I think that the Court should have applied the rule that a correct instruction given does not cure the error committed in giving an erroneous instruction upon the same subject.

The instruction in question, with those parts underscored which I believe plainly show its confusing and misleading character, is as follows:

"The Court instructs the jury that it was the duty of the defendant Railway Company, in construction and maintaining its railroad bridge over the waters of Loup Creek, below the properties of the plaintiffs so as to provide not only for the flow of all water that could be carried in the channel, and such floods as might occasionally occur in the waters of said creek, but likewise to provide for such unusual or extraordinary flood, as it should have been anticipated occasionally would occur in the future, because such unusual or extraordinary floods may have occurred in the past, and if you believe from the evidence in this case that on or about the year 1916 there was an unusual and unprecedented flood in the waters of Loup Creek, and that the bridge in question caused such an obstruction that the lands above the same were overflowed by water, the duty then arose upon the said Railway Company to meet such conditions thus established by said flood. And if you further believe from the evidence that an unusual, extraordinary flood came in the waters of Loup Creek on the 28th day of June, 1934 (1932) which caused said bridge to be obstructed and to cause the waters of Loup Creek to flow on and over the lands of the plaintiffs, and do damage and injury thereto, the duty then arose to meet the new conditions thus established, and if you believe from the evidence in this case that the Railroad Company had an opportunity to meet these conditions and did not do so, and that by reason of past occurrences the flood of July 11, 1932, was in reasonable contemplation, and should have been anticipated and guarded against by the Railroad Company, in the exercise of reasonable care and that they had the time and opportunity to do so, and failed and refused to do so, then you should find for the plaintiffs in the amount of the damages sustained by them, either from the first flood of June 28, 1932, or the second flood of July 11, 1932, or from both, as you may believe from the evidence that there has been a dereliction of duty by the defendant, as above set forth, which caused or directly contributed to causing such damage or injury."

This instruction is in binding form. It will be observed that the first sentence tells the jury that it was the duty of the defendant in constructing its bridge over Loup Creek to provide for unusual and extraordinary floods that might occur in the future because such unusual and extraordinary floods may haveoccurred in the past. The fact that the sentence refers also to a flood that actually did occur in 1916 does not circumscribe the latitude given to the jury by the erroneous statement of the rule contained in the other part of the sentence. One who builds a bridge across a stream is chargeable with a high degree of care lest his conduct increase the violence or extent of nature's forces to the injury of another. Nevertheless, the standard of his care is not what may have occurred in the past but what actually did occur in the past. To say that he must guard against extraordinary floods because extraordinary floodsmay have occurred in the past, to my mind, makes the basis of recovery a mere matter of conjecture, and leaves the conjectural solution of the problem altogether in the hands of the jury without the possibility of guidance from the court. If this occurs, then caprice may be substituted for law.

The second sentence of the instruction tells the jury that if they believe an extraordinary flood occurred in the waters of Loup Creek on the 28th day of June, 1934, (1932), the duty devolved upon the railroad company to meet the conditions established by that flood, and that if by reason of past occurrences the flood of July 11, 1932, was in reasonable contemplation and should have been guarded against in the exercise of reasonable care, then the jury should find for the plaintiffs the damage sustained from the first flood of June 28, 1932, or from the second flood of July 11, 1932, or from both. Dealing with the sentence in which this language occurs as separate and apart from the first sentence of the instruction, it is readily seen that the effect is to make the flood of June 28, 1932, the standard by which a recovery may be had for the flood of June 28, 1932. In pointing out the flood of June 28, 1932, as giving rise to the duty to guard against such conditions as it involved and then telling the jury that if by reason of past occurrences, the flood of July 11, 1932, should have been anticipated and guarded against, then the jury may find for the plaintiffs the damage occasioned byeither flood, is, I think, palpably misleading.

To read the instruction so as to relate the second sentence of the instruction back to the first sentence and thus to take into consideration the reference contained in the first sentence to the flood of 1916 would require an astute and expert grammarian. But conceding the very doubtful question that a jury might so interpret the wording of the instruction as a whole, and might thus clear up a part of the difficulty involved in the second sentence, that sentence is still not clear and contains an inherent vice. It tells the jury that if by reason of past occurrences, the flood of July 11, 1932, "was in reasonable contemplation, and should have been anticipated and guarded against by the Railroad Company," that then the jury may find damages for the plaintiffs in consequence of the flood of July 11, 1932, or the flood of June 28, 1932. In other words, if the flood of July 11, 1932, should have been anticipated and guarded against, then the verdict shall be for the plaintiffs for the damage occasioned by either flood orboth floods, regardless of whether the flood of June 28, 1932, should have been anticipated and guarded against by the defendant.

Believing, as I do, that this instruction not only fails to set up the correct standard by which the plaintiffs may recover, but that it does in fact set up an entirely incorrect standard of recovery, in my judgment, its giving was both erroneous and prejudicial. For that reason, I think the judgment below should be reversed, the verdict set aside and a new trial awarded.

Judge Hatcher authorizes me to say that he concurs in the above views.