Ohio & Mississippi Railway Co. v. Long

Mr. Justice Sample delivered the opinion of the Court. The appellee recovered a judgment for damages to his crop from an overflow of water, caused, as alleged, by the negligence of appellant, in closing up a trestle in its road embankment, whereby the water from Little Canteen Creek, that should have gone through said trestle to the south, ran north, upon his land. The issues tendered by appellant on the facts were, first, that the water from that creek did not naturally run south through said trestle; second, that even if some of the water had run south before the trestle was closed, and was thereafter caused to flow to the north, the damage to appellee’s crop was not done thereby, but by other water, the flow of which was not affected by the closing of the trestle. The jury found against the appellant and we are requested to review their finding. In order to do so, we have found it necessary to read the record, from which the conclusions reached upon the evidence are, first, that the trestle that was filled up by the appellant in 1870, formed a way for the escape of the water to the south, from the Little Canteen Creek, during freshets, which was a natural way for a part of the water to run, in such cases; second, by the filling up of the trestle, water that would have run south ivas forced to the north, toward the land of the appellee; third, that the crop of appellee, for the destruction of which damages were allowed, was overflowed by water from Little Canteen Creek, which at the time in question was so high as to flood the levee that had been constructed on the south and west of appellee's land; fourth, we are not prepared to say, had Little Canteen Creek had its natural outlet to the south through said trestle for a part of its water to escape in that direction, that it would have raised so high as to overflow the levees constructed to protect appellee’s land and destroy his crop. The jury, by its verdict, found that it would not have done so but for such obstruction. There was substantial evidence to support that finding. It is claimed, however, by the appellant, that deposits would have formed an obstruction to such flow of water, even if the trestle had been left open, and therefore the appellant is not liable. íf the deposits had formed on the appellant’s right of way, so as to obstruct such flow of water, it was the duty of appellant to have removed them. Its duty was not only to construct a water-way required by the natural lay of the land, through its road bed, but its duty also was to maintain such water-way. The witness Thillman was permitted to state, if he knew, what caused the land of appellee to be overflowed, to which objection was made by appellant on the ground he was merely a farmer and not a scientific expert. It is said the Supreme Court in the case of Nuetzel, 32 N. E. Rep. 529, held such evidence was incompetent. We do not so understand that decision. It held an expert’s evidence was competent on this subject, and not that a non-expert’s evidence, based on a knowledge or assumed knowledge of the fact, was not competent. It is also objected that the appellee was allowed to express an. opinion as to the amount of damages he sustained. It is said the ruling permitted the witness to usurp the functions of the jury, who were to determine that question. Opinion of witnesses as to value, form an exception to the general rule that facts alone are admissible. The law has no other standard to fix the value, as a fact, than the opinions of witnesses (Butler v. Mehrling, 15 Ill. 488-491), except it might be in case of property that had a standard value. The I. & W. R. R. Co. v. Van Horn, 18 Ill. 257-8. The objection to the second instruction given for appellee is not considered well taken. It limited the damages to those sustained by reason of the grievance averred in the declaration. It was for the jury to separate the causes of damage, if required by the evidence, and fix the amount caused by appellant’s unlawful act alone. The instruction was within the rule in C. & N. W. Ry. Co. v. Hoag, 90 Ill. 339. Error is assigned on statements made by appellee’s counsel in his address to the jury. He criticised, first, the evidence of James B. Miller, who had appeared as a witness in another case to sustain this class of claims, and second, the force of expert evidence. The record does not show that Miller had testified in ten or a dozen other similar cases, as charged, differently from what he did in this case; nor does it show that the experts were paid $100 or $200 apiece, as charged, for their testimony; in those particulars the remarks should not have been made. The counsel, however, had a right to comment, in the way of argument, on the force of expert evidence, and on the fact of any discrepancy that he might have discovered in the testimony of Miller. It would have been well to have omitted some things that were said, but we do not believe the remarks were of that inflammatory character that would or did prejudice the minds of the jurymen. There being no substantial error in the record the judgment is affirmed.