Brown v. Pine Creek Railway Co.

Opinion by Mr. Justice Dean, The plaintiffs were, and for many years had been, the owners of a farm, containing sixty-six acres, in Cummings township, Lycoming county. Its northern boundary was Pine creek. In September, 1882, the predecessor of what is now the Pine Creek — 49 — Railway Company, appropriated for railroad purposes, under its right of eminent domain, a roadbed ninety feet in width, and in quantity about four and three fourth acres, running through the farm. The parties could not agree upon the amount of damages, and viewers being appointed to assess them awarded to plaintiffs $593.75. From this award the railroad company, on October 5, 1882, appealed. On November 2, following, issue was framed on the appeal. On January 18, 1883, the parties, by agreement in writing, settled the issue. The material parts of the agreement, as concerns the present contention, are as follows: “Know all men by these presents, that we, James Ramsey, of Watson township, and Simon B. Brown and Sarah Jane, his wife, in right of Sarah J. Brown, of the township of Cummings, county of Lycoming, and state of Pennsylvania, for and in consideration of the benefits and advantages which will result to us from the location and construction of the railroad of the Jersey Shore, Pine Creek and Buffalo Railroad Company and its branches, and the further consideration of $1200 paid by the said railway company, the receipt of which is hereby acknowledged, have granted, bargained, sold, released and quit-claimed unto the said railway company, and to their successors and assigns, the right to enter upon, use and appropriate a strip of land ninety-nine feet in width, said strip of land to be sixty-six feet wide on the west side and thirty-three feet on the east side of the center line of said railway, for the construction and use of said railway as the same is now located over our lands in the township of Cummings, county of Lycoming and state of Pennsylvania. . . . “ And we, the grantors, do hereby release to the said railway company all claims for damages which we have sustained or shall sustain by reason of the location, construction and operation of its said railroad or branches.” In the fall of 1882, the winter of 1882 and 1883, and spring of 1883, the railroad company constructed a fill or embankment for its roadbed on the land appropriated, from a point on the rising ground eleven hundred feet distant from Pine creek, which latter it crossed by a bridge. At the bridge the embankment was about twenty-three feet in height. The bridge was constructed on piers and abutments. The company, having finished — 50 — the construction of its road in 1883, operated it until June 1, 1889, when a flood swept away the embankment and bridge, also plaintiffs’ barn and outbuildings and orchard; the top soil of the bottom land, between the embankment and the creek, was also washed off. Plaintiffs, alleging their injury was caused by the negligent and defective construction of the embankment and bridge, that the two together were so planned and built that they formed in time of freshets a dam for the water of the creek, causing it to back and sweep over his buildings and land, brought this suit for damages. At the trial in the court below, defendant offered no testimony, but relied on two grounds of defense; (1) the flood of June 1, 1889, was an extraordinary flood, an act of God, for which defendant was not answerable; (2) the agreement of January 18, 1883, was an effectual bar to plaintiffs’ action. The court submitted to the jury three questions on the evidence : first, was the flood an extraordinary one, which could not reasonably have been foreseen and provided for? If it was, then defendant was not answerable. If it was but an ordinary flood, then, second, were the embankment and bridge so negligently constructed that they caused the damage ? If they were negligently constructed and caused the damage, then, third, were they constructed before the release of January 18, 1883 ? The last question was to be answered by a special finding, the effect to be determined by the court on a question of law, reserved, to wit: the interpretation of the written release. The jury found for plaintiffs, and the court, afterwards, in opinion filed, entered judgment on the verdict. Defendant appeals, assigning eight errors. The first to fifth, inclusive, have nothing to sustain them. The complaint in the first of the improper admission in evidence of the record showing the appointment of viewers is not well founded in view of the purpose of the offer: that is, to show the appropriation of the land by defendant and the date of it. The remaining four assume there was no evidence for the consideration of the jury; therefore, a verdict should have been directed for defendant. This is a mistaken assumption. The court was clearly right in deciding the case was one principally of fact to be determined by the jury from the evidence. The sixth, seventh and eighth suggest three propositions: — 51 — 1. Did the evidence establish indisputably, the flood was an extraordinary one, and, therefore, one which defendant was not bound to anticipate in the construction of the embankment and bridge ? 2. If it did not, then was there evidence of negligence in construction which wras the approximate cause of the damage? 8. Was there any evidence to submit to the jury that the release was executed before the construction of the embankment and bridge ? As to the first: The flood of June 1, 1889, generally known as the “ Johnstown Flood,” extended nearly over the entire area of the state. At many points it was, unquestionably, extraordinary in its force and destructiveness; at others, it was not. Whether it was extraordinary on Pine creek, a tributary of the Susquehanna, was, on this evidence, a question of fact. The testimony was somewhat conflicting; some of it tending to show it was of such an exceptional character that a builder could not reasonably have anticipated it; some of it, however, tending to show it did not exceed in force and volume of water the ordinary spring flood. Much of the apparent conflict arose from the difference in language adopted by witnesses to express the same idea. For example, it was established, that in a period of forty-two years, including the flood of 1889, there had occurred live floods in this creek of about equal force and volume of water. Some of the witnesses termed these floods, big floods, extraordinary floods; others said, the one in 1889 was about the same as other floods, meaning the three or four previous ones, which they remembered particularly, because of their destructiveness. That an extraordinary flood may occur more than once in a series of years cannot be questioned, and the repeated occurrence does not, of itself, warrant the conclusion it was only ordinary; nevertheless, as said by this Court in Railway Co. v. Gilleland, 56 Pa. 445: “ But the frequent occurrence of what was supposed to be extraordinary was some evidence that the real character of all these floods had been mistaken by those who testified as to their extraordinary character, and that they were really only ordinary freshets, though measuring up to the highest altitude of that class. It -was proper, therefore, to submit this question to the jury with instructions, if they so found the fact, to apply the rule as to ordinary freshets.” The learned judge of the court below embodied exactly this — 52 — idea in 'bis language to the jury, thus: “ I would say to you, gentlemen of the jury, that if there had been no floods at any time on Pine creek approaching in height the quantity of water of the flood of 1889, that it would be an end of this case. The plaintiffs could not recover, because then it would be clearly an extraordinary flood, against which the company were not bound to provide. But the question is whether, in view of the facts of these other floods that have been testified to by the witnesses as having occurred previously, and the number of times that they have occurred, together with the other circumstances that I have mentioned, whether under all this testimony, this flood of 1889 was really an extraordinary flood on Pine creek. . . . “ In considering what is an extraordinary flood in a particular stream you must take into consideration what should be expected in that particular stream from the character of it, the adjacent territory, and the other circumstances that I have mentioned of the previous floods, all taken together.” This same instruction was mor.e than once repeated; it was correct, and the jury could not have failed to understand it.’ They found this was just such a flood as residents of that neighborhood might, from their observation, expect ■ and, therefore, was not extraordinary. As to the second, was there negligence in construction ? There was abundant evidence from which the jury was warranted in finding that if this 1889 flood was an ordinary one, then the construction of the embankment and bridge made no provision for it; the vent was wholly insufficient for the escape of that quantity of water, and the structure served but as a dam to aggravate the destructiveness of the accumulated water. The constructing engineers of defendant were bound to know the ordinary high water of the stream and make provision for it, because ordinary inspection of the watershed and fall, as well as inquiry of those who lived near the stream and were familiar with its history, could have shown them, what should-be the design and capacity of their proposed structure. The rule applicable is stated in Railway Co. v. Gilleland, supra:’ “We must conclude, therefore, that though the state’s right of eminent domain is committed to the company, and it may lawfully enter and build all such structures, proper to accomplish the purpose of its charter, without liability for damages, further — 53 — than is provided for in its charter, yet this does not justify unskilfulness and unnecessary injury in the mode of performing the work, or in the character of the structures erected. The companjr is bound to bring to their execution the engineering knowledge and skill ordinarily known and practiced in the construction of such works. ... 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 indicated the duty.” But, it was scarcely pretended at the trial that the defendant had not failed in duty if the flood was an ordinary one. The whole strength of its contention was in the averment that the flood was extraordinary, therefore, could not, when the work was planned, reasonably have been anticipated. The fact, according to the finding of the jury, being otherwise, negligence, as an inference, almost necessarily followed. As to the third question, was there any evidence to submit to the jury which would warrant the finding that the work was done after the execution of the release ? While the testimony on that point is meager, nevertheless, it did not clearly appear that the work was done on January 18, 1888, the date of the writing. The land was first appropriated by defendant under its right of eminent domain; it took only the land; the character of the structure which would be put upon it was wholly in the future. Then the proceedings to assess damages for the taking were instituted; while this issue was pending it was settled by the agreement. There is not a word in the writing necessarily indicating a,n intention to include other damages than those within the jurisdiction of the viewers. We concur with appellant that it was a very material fact in the interpretation of the agreement whether the embankment and bridge were constructed before or after its execution. If the work was then completed, it might very fairly be assumed that the words “ We do hereby release to the said railway company, all claims for damages which we have sustained, or shall sustain, by reason of the location, construction and operation of said railroad,” covered the claim now sued for. The agreement should be interpreted in view of the surroundings of the parties at the date of it. If this plaintiff, who had for years lived on this — 54 — land, had witnessed all the floods in the stream which bounded it, had before his eyes the structure which was obviously, as he now avers, insufficient to pass the water by ordinary floods, it certainly would be only a reasonable inference, that the damages he intended to release were those which might result from the structure then before him. But the date of the construction was no part of plaintiff’s case. If there were surroundings dehors the agreement, which were important to an ascertainment of the real intention of the parties from their words, the burden was on defendant to show such surroundings. But it offered no evidence whatever; it now relies on plaintiff’s vague statements to establish a most material fact in its case. Nothing, however, is to be gathered from his testimony, except the fact that he did not certainly know when the work was done. To repeated questions he answered that he did not know when the bridge, abutments and piers were erected. He says, “they were working there in the winters of 1882 and 1888, and commenced running the next spring.” Whether the narrow vent of the bridge, for the waters of an ordinary flood, existed on January 18, 4883, could not be determined as an established fact from plaintiff’s testimony, or that of any other witness. The court, was, therefore, bound to submit the evidence to the jury to find the fact, and they have found that the agreement “was executed and delivered before the construction of the embankment, bridge, abutment and piers in controversy.” It was, doubtless, in the power of defendant to prove beyond controversy the exact date of the completion of the work; it did not choose to do so. There being nothing in the agreement to indicate otherwise, the fact must be taken as the jury has found it. Therefore, from its words, at the date of the agreement, the plaintiffs intended to release just such damages as the jury of view had the authority to assess under the act of assembly. All the assignments of error are overruled, and the judgment is affirmed.