Fick v. Pennsylvania R. R.

Pee Ctjeiam, In this action, to recover damages resulting from defendant’s negligence, etc., the plaintiff alleged and introduced testimony tending to prove that the company so negligently constructed and maintained a culvert under its roadway at Gallitzin that it was insufficient to receive and vent the water that naturally collected at its mouth, and consequently it was backed into his premises and his property was thereby injured and destroyed. Referring to the natural water course or channel, etc., the learned judge correctly instructed the jury, that the company had an undoubted right to build its railroad across said channel, but, in doing so, its duty was to construct an artificial channel or culvert, so that the embankments would not obstruct the natural flow of the water ; that it was only bound to provide for ordinarily high water and not for extraordinary freshets, and that it was also bound to maintain the culvert in such a condition that its capacity would be sufficient to carry away the water in ordinary but not in extraordinary floods. They were also instructed that if, on June 19, 1891, there was such an extraordinary fall of water that the company, by exercising ordinary care and diligence, could not keep the culvert open, it would not be liable. The questions of fact, necessarily involved in these and cognate inquiries, were for the jury, and to them they were fairly submitted with instructions which appear to be entirely adequate and free from error. The defendant has no just reason to complain of the learned judge’s answers to plaintiff’s points, recited in the first and second specifications, nor to his answers to its own points recited in the third to'fifth specifications inclusive. The testimony referred to in the sixth and seventh specifications was rightly admitted. Reference has already been made to that part of the charge recited in the eighth and last specification. ‘ We think the instructions contained therein were fully warranted by the evidence and were entirely proper. Judgment affirmed.