Director-General of Railroads, & Carolina, Clinchfield & Ohio Railway v. Bryant's Adm'r

Sims, J., after making- the foregoing statement, delivered the following opinion of the court: There are numerous assignments of error, but in the view we take of the case it is necessary for us to consider but one question raised thereby, and that is as follows: 1. Is there any evidence in the record to support the verdict of the jury in finding that the railway company was guilty of any negligence which was the cause of the fall of the building into the stream, which resulted in the death of the deceased by drowning? We are of the opinion that the question must be answered in the negative. In the first place, if we infer from the circumstantial evidence (consisting of the existence of the freshet and its ac [659] companying features at the time of the accident), that an erosion of the embankment was caused by the freshet, which left the building dependent upon the corner posts for support; and also that the corner posts were moved or swept away by the freshet, we are still left by the evidence uninformed as to what feature of the freshet caused the abnormal erosion of the embankment or moved the posts. Was such result due to a change of the current of the stream whereby the force of the water and logs and other debris-carried thereby, which normally may have been carried over some other part of the channel, were cast against the bank on which the building rested and against the corner posts, resulting in an abnormally excessive erosion of the embankment and in sweeping away the corner posts ? The evidence leaves this question unanswered. But this must be true. Either there wa,s such a change of current of the stream, or there was not. If there was not such a change of current, we cannot account for an abnormal erosion of the embankment, or for a carrying away of the posts which had theretofore withstood unmoved the impact of the logs and other debris of the frequently occurring normal freshets during a period of four years, unless these results were due to the abnormal volume and speed of water at the time of the accident, which abnormally eroded the embankment and cast the logs and other debris with abnormal force against the posts and thus swept them away. For the evidence is that while the volume of water of the freshet at the time of the accident was greater than that of any preceding freshet to which the embankment and posts had been exposed, the quantity of logs and other debris was less than they had been exposed to in other frequently occurring freshets during the four year period aforesaid. Therefore, if there was not such a change of current, there is nothing in the evidence to show that the railway company, in the ■exercise of reasonable forethought, should have anticipated [660] that there was any danger of the embankment being so washed away as to destroy the equilibrium of the building or of the posts being moved, by the freshet which occurred at the time of the accident; unless the railway company was charged with the duty of anticipating that such a freshet .as this which occurred at the time of the accident was likely to occur. If then there was such a change of the current, there is nothing from-which any negligence of the railway company can be inferred, unless the evidence shows that the railway company could have reasonably anticipated that the current would so change. Now on the latter question,- the evidence shows that the normal current of the stream, prior to the freshet at the time of the accident, was toward the opposite bank from that on which the building was located. And, from the fact that the corner posts were not carried away ' during the four years they had stood as aforesaid, it seems reasonable to conclude that the current of the stream in the freshets during that period was in that direction and carried the logs and other debris and the main force of the water in such direction. If then the current changed, it must have changed during the progress of the last freshet. If so, to what cause was the change due? The evidence is silent as to this matter also. If there was such a change, and if it was due to any cause for which the railway company was responsible, or of which it had such foreknowledge, actual or constructive, as rendered it negligent in the premises, the evidence fails to disclose it. And under the circumstances, in the absence of such proof, we must assume that no such proof could be furnished. [1] So that whether the current of the stream changed, or did not change, it is plain that no negligence in the premises can be imputed to the railway company, unless in erecting and maintaining the building it was charged with the duty of anticipating that such a freshet as that which occurred at the time of the accident was likely to occur. Now [661] whether the railway company was changeable with such duty depends upon whether under the circumstances of the case before us, the flood in question falls within the category of an “accidental” or “extraordinary” flood, i. e., whether in legal contemplation it was an “act of God.” [2, 3] As laid down in 2 Farham on Waters and Water Eights (1904), section 577a, p. 1840: “An extraordinary flood * * * is one which men of ordinary prudence would not have anticipated and provided for. A flood is not extraordinary which is such as residents of the neighborhood might expect from their observation. The rule is stated by the Alabama court as follows: ‘Floods such as from climatic and geological conditions may reasonably b'e expected, whether of frequent or infrequent occurrence must be taken into consideration in estimating hazard attending the obstruction of water courses. The term “act of God,” in its legal sense, applied only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them. And that rule must be regarded as the proper one.’ ” [4, 5] Applying such rule of law to the facts of this case, we are of opinion that the flood in question was such an “extraordinary flood” that the railway company in erecting and maintaining the building aforesaid was not charged with the duty of anticipating that it was likely to occur. It acted with reasonable prudence and forethought in supposing that a construction which withstood unmoved all the freshets which came for four years, and which it was reasonable to suppose would have withstood the highest of all previous freshets which had occurred in the stream within the knowledge of any of the witnesses, covering a period of twelve years, would withstand all subsequent freshets which were to be reasonably expected. The railway company took care, by periodic inspection, at reasonable intervals, in view of the character of the building and the use which it served, to keep informed as to whether the strength of the original [662] structure was maintained. Upon recent inspection before the accident, the structure was found to be in as safe-corn dition as it was when originally erected, and likely to continue só as long as the rear corner posts were kept secure in the same way they had been and were then secured. So far as disclosed by the evidence, there was nothing then or at any time to indicate that the posts did not remain up to the time of the accident as securely fastened as when they were originally placed under the building. Thus the railway company, in our opinion, fully discharged its duty in the exercise of reasonable care in the premises. [6] We are not called upon in this case to decide whether under circumstances such as the erection of a structure on which the safety of passengers depends, or under other circumstances, a railway company would exercise reasonable ca,re if it relied upon the history of a stream and climatic and other conditions of a locality for a preceding period as short as twelve years, in making provision against the effects of floods in the future. What is reasonable care under the circumstances of the erection and maintenance of a, building for the use to be served in the instant case, where the structure itself was relatively temporary, its use not necessary, or enjoined as a duty, but was to a certain degree optional, with the whole situation to a great extent, although not entirely, as obvious to the deceased as could have been ascertained by the railway company by inspection, might not be reasonable care under other circumstances. In no aspect of it, in the- instant case, do we find any evidence in the record to show that the railway company was guilty of any negligence which was the cause of the fall of the building which resulted in the death of the deceased. The verdict of the jury and judgment under review will therefore be set aside and annulled; and, as it seems to us' that the facts before us are such as to enable us to attain the ends of justice by final judgment upon the merits, the case will be dismissed. Reversed; and, dismissed.