Bonner v. Wingate

STAYTON, Chief Justice. —Appellees, as mother, wife, and children of J. E. Wingate, deceased, brought this action to recover damages claimed to have been sustained by them from his death, which is alleged to have been caused by the negligent construction of a culvert on the railroad of which appellants are receivers. The trial resulted in a judgment in favor of appellees for $10,000, which was apportioned. That the accident occurred from a washout at the culvert is not denied, but it was claimed that the culvert was well constructed, and that the washout occurred on account of an unprecedented rainfall. It was further claimed that a third person had constructed a dam across the ravine on which the culvert was, above it, and on his own land, which gave way and precipitated the pent up waters on the culvert, which caused the embankment contiguous to it to give way, although properly constructed. There was evidence showing the breaking of the dam and that the water flowed from it upon the culvert, and there was evidence tending to show that the culvert was skillfully constructed, and to the contrary. The defendants asked the following charge, which was refused: “Defendants ask the court to instruct the jury that if the giving away of the water tank above the culvert, and the washing away of fencing, which water tank was the property of Henry Smith or any other person, and over which defendants had no control, caused the culvert to give away or contributed to that result, then the giving away of said culvert was not the result of the negligence.of the company, and you will find for the defendants.” This ruling of the court is assigned as error, but we are of opinion that the charge was properly refused. The question was whether such care and skill had been used in the construction of the culvert as was requisite from the railway company or from the receivers, and the charge requested would in effect have informed the jury that appellees were not entitled to recover if the breaking of the dam contributed to the breaking of the culvert or embankment although the construction of the latter was faulty. It further declared to the jury, in effect, that the railway company could not be deemed negligent if the breaking of the dam caused or contributed to the breaking of the culvert, but we do not see that if the breaking of [337] the dam caused the culvert to break or contributed to that result that these things would even tend to show that the culvert was - properly constructed. If the construction of the culvert was faulty and it would not have broken but for the additional contribution of water flowing at a given time upon it from the breaking of the dam, even then appellees were entitled to recover, for they would certainly be entitled to recover if the negligent manner in which the culvert was constructed contributed to the injury, although the negligence of a third person may have contributed to the same result. The question was, would the accident have occurred but for the negligent construction of the culvert? The court gave the following as a part of the charge: “The law calls upon the defendants to so construct and keep in repair their road bed and to so build their bridges and culverts with reference to the lay of the land as will be sufficient to carry off the water, and if they so fail and cause the water to bank up and undermine the track, causing injury, defendants would be liable.” It is urged that this was erroneous, “because said charge requires too much of defendants, and makes no allowance for unusual or unexpected heavy rains or the filling up of said culvert by the washing away of private property over which the defendants had no control.” The court, however, further charged “that if the rain was unprecedented, and could not have been anticipated by reasonable care in furnishing a culvert to carry off same, then such a freshet would be one of those acts that could not by skill be avoided, and the defendants would not be liable, and you will so find.” Throughout the charge the court instructed the jury that the liability of appellants depended on whether due care and skill had been exercised in the construction of the culvert, and informed them that if the culvert was properly constructed and kept in repair, with sufficient capacity to carry off water that might be expected to pass through it, then appellants would not be liable. Taken altogether, the charge in this respect fairly submitted the law to the jury. It is assumed that the charge, in effect, informed the jury that appellants were liable if by the exercise of any degree of care and skill the accident could have been provided against, but we do not find the charge susceptible of such a construction. It is urged that a new trial should have been granted because there was no sufficient evidence to fix liability on appellants, and because of an excessive verdict. There is some conflict in the evidence, but there was much evidence tending to show that the construction of the culvert was faulty, that it had once or twice before washed out, and that in its repair no improvement was made in its structure. It was further shown that on former occasions rainfalls had occurred which were as heavy if not heavier than that which caused the culvert to give way at the time the accident occurred. [338] The verdict seems large, but the deceased was a young and strong man, who devoted his earnings to the support oí appellees, and his earnings during some months amounted to more than $100 per month. He was engaged in a business in which it might reasonably be expected that, if faithful, he would be promoted to a more valuable position. We find no error requiring a reversal of the judgment, and it will be affirmed. Affirmed. Delivered October 31, 1890.