Baltimore & Ohio Railroad v. Sulphur Spring Independent School District , 96 Pa. 65 ( 1880 )

Mr. Justice Green

delivered the opinion of the Court, November 22d 1880.

On the trial of this cause, the plaintiff made the following offer of proof by the witness, Alexander Eulton, viz.: “ That he owned land on the line of the P. & C. Railroad Co. in 1856, and notified the engineer who was then employed by the P. & C. Railroad Co., and was engaged in the erection and construction of said barrels or culverts at Shaner’s Station for the said company, that they were insufficient to receive and discharge the volume of water. That the engineer replied he knew they were not sufficiently large to receive the water.” A similar offer, with a somewhat less precise designation of the character of the work in which the engineer was engaged, had been previously made and rejected, under objections by the defendant, but when repeated in the form last offered, the objections were overruled and the evidence was admitted. The witness then proceeded to testify that in 1856 he told the engineer who had charge of the construction of the culverts at Shaner’s Station that they were too small and that the engineer had said in reply that “ they were not sufficient in that shape from what he had seen of the floods there that summer.” We think this testimony was erroneously admitted. The witness did not name the person with whom he held this conversation, so that it could with certainty be determined whether he was correct in his supposition that he was the engineer in charge of the construction, or so that an opportunity for a possible contradiction would be afforded. Moreover, the person, whoever he was, was not an agent of the defendant, but of another corporation which twenty-four years before had built the railway and culvert. Again, the testimony itself was but the opinion of the engineer as to the sufficiency of the culvert, communicated to another, and that opinion he could give directly to the jury. Its communication to another who was an entire stranger to the defendant, nearly a quarter of a century before the trial, certainly could not suffice to bind the defendant in any manner whatever. The second assignment of error is therefore sustained. We are also of opinion that the court erred in their answers to the plaintiff’s second and third points. In affirming the first point, the court ruled that: “ If there was negligence on the part of the defendant concurring with the act of God, at the time plaintiff’s loss was sustained, then the defendant is liable, and the jury are not bound to inquire whether the loss would have happened if the defendant had not been guilty of negligence.” As we understand this point, it practically declares that although the act of God alone, without any negligence of the defendant would have caused the injury, the jury were not at liberty to consider that fact, if in reality there was negligence on the part of the defendant concurring with the act of God. In other words, no matter how terrible, extraordinary and unprecedented were the storm and flood, so that they alone caused the injury, yet if there was concurring negligence of the defendant, although-it did not produce the injury, and its absence would not have prevented it, still the defendant would be liable. The same idea is repeated in the plaintiff’s second point, that if the defendant’s negligence in any degree caused the loss, they would be liable. Now a small pebble in one of the culverts would in some small degree, impede the course of the water, yet the doctrine of this point, which the court affirmed, would make the defendant liable for the entire injury, even though a huge avalanche of water were suddenly launched upon the stream and hurled with irresistible force upon the embankment and culvert in question. Such is not the law. This is the very highest possible degree of care, greater even than is required of railroad companies in the carriage of passengers. The correct doctrine on this subject was expressed in the case of the Pittsburgh, Fort Wayne and Chicago Railway Co. v. Gilleland, 6 P. F. Smith 445, to wit: A railroad company in constructing its road and works is bound to bring to their execution the engineering knowledge and skill ordinarily known and practised in such works. There is ho liability on the part of a railroad company for not constructing a culvert so as to pass extraordinary floods. On page 452, Agnew, J., delivering the opinion of the court, says: “ In the present case, then, if the culvert was so unskilfully and negligently constructed as to be insufficient to vent the ordinary high water of the stream, the railroad company building it would have been-liable for the injury thereby caused. The apparent facts indicate the duty. The stream, though small, must find a vent, or overflow the adjacent land and undermine the railroad.- Its size, the character of its channel, and the declivity of the circumjacent territory which forms the watershed, indicated the probable quantity of water to be passed through. Proper engineering skill should observe these circumstances, and supply the means of avoiding the injury which would result from locking up the natural flow, or obstructing its passage so as to cause a reflux in times of ordinary high water. Beyond this, prudent circumspection cannot be expected to look, and there is, therefore, no liability for extraordinary floods, those unexpected visitations whose comings are not foreshadowed by the usual course of nature, and must be laid to the account of Providence, whose dealings, though they may afflict, wrong no one.” Here is a plain, easily understood and carefully stated rule of duty and of liability. In the main, the court below adhered to this rule, but in the answers to the plaintiff’s first and second points they went beyond it, and in this there was error. We apprehend that'the concurring negligence, which, when combined with the act of God, produces the injury, must be such as is in itself a real producing cause of the injury, and not a merely fanciful or speculative or microscopic negligence which may not have been in the least degree the cause of the injury. In other words: If the act of God in this particular case was of such an overwhelming and destructive character, as by its own force, and independently of the particular negligence alleged or shown, produced the Injury, there would be no liability, though there were some negligence in the maintenance of the particular structure. To create liability it must have required the combined effect of the act of God and the concurring negligence to produce the injury. " The present case affords a fair illustration of the reason for this 'distinction. The defendant’s witnesses testified that the force and volume of the water were so very great that it would have required one hundred and twenty such culverts to pass it. off. Hence, if' the three culverts were in the most perfect condition, they would not at all have prevented the injury, and therefore the fact that they were somewhat obstructed might be quite immaterial. If the jury believed this testimony, it might have had a most important bearing upon their verdict, to the extent even of inducing them to find in favor of the defendant. But the case was not put to them in that way, and they had no opportunity-of considering it in that aspect. For these reasons we sustain the second and fourth assignments of error. The other assignments are not material'and are not considered.

Judgment reversed, and venire facias de novo awarded.