Buckalew v. Lusk

GARDNER, J. The evidence for the plaintiff tended to show that prior to the construction of the defendant railroad there was a stream running on the east side of her property, which served as a natural drainage for both usual and heavy rainfall, through which the water in its natural flow passed down beyond where the railroad is now situated and into what is known as Beaver Creek. The evidence further tended to show that before the construction of the railroad this natural drainage was sufficient to take off the water, but that by the construction of the roadbed and the embankment caused from the building of same the stream was diverted from its accustomed course and caused to run east about 800 yards; that is, the flow changed from a northwesterly to'a directly eastern course for that distance before passing under a trestle of the railroad. [521] There was also evidence tending to show that within the 12 months prior to the bringing of the suit the passageway under the trestle had become filled in from six to eight feet and the ditch along the railroad right of way had become obstructed, which condition caused the overflow on plaintiff’s premises and resulted in the damages alleged. The plaintiff confined her case to the damages occurring within one year prior to the bringing of the suit. Evidence for the defendant tended to show that the drainage was sufficient, and that the overflowed condition was not caused by any act or omission of act on its part, but from the condition of the stream above the plaintiff’s premises. If the evidence for the plaintiff is believed by the jury, the right of recovery is well established by the following authorities: C. of Ga. Ry. Co. v. Windham, 126 Ala. 552, 28 South. 392; Lindsey v. So. Ry. Co., 149 Ala. 349, 43 South. 139; Savannah, etc., Ry. v. Buford, 106 Ala. 303, 17 South. 395; Ala. Conn. C. & I. Co. v. Vines, 151 Ala. 398, 44 South. 377; Collins v. L. & N. A. R. Co., 176 Ala. 174, 57 South. 833; So. Ry. Co. v. Lewis, 165 Ala. 555, 51 South. 746, 138 Am. St. Rep. 77; Ala. West. Ry. v. Wilson, 1 Ala. App. 306, 55 South. 932. Under the principle established' in these cases, we are of the opinion that charge No. 1 given at defendant’s request confined the duty on defendant’s part to supplying drainage for the discharge of the normal rainfall only. If the overflow on the plaintiff’s premises was caused by the wrongful conduct of the defendant in diverting the natural course of the stream, as was the plaintiff’s contention, and the defendant not undertaking to give sufficient drainage for the natural flow of water, the duty upon it is not only to provide for the normal rainfall, but for heavy or unusual rainfall as well.—C. of G. Ry. v. Windham, supra; Lindsey v. So. Ry. Co., supra. There was no pretense of damages, caused by any unprecedented rainfall or flood condition, and no such defense as “the act of God” was interposed as applicable here.—So. Ry. Co. v. Lewis, supra. The giving of this charge for defendant narrowed the scope of its duty, and was erroneous. The oral charge of the court does not appear in the record, but on examination of the record we are persuaded that the ruling of the court on these charges was prejudicial to the plaintiff’s cause. [522] Witness Springfield, agent for the defendant company at Sul-ligent, testified on direct examination that the drain ditch of the defendant company was sufficient, and that the overflow was not produced by any obstruction therein. On cross-examination plaintiff asked the witness if he had not stated to Dr. Buckelew, after the appointment of the receivers of the railroad company, that the defendant had let this ditch become so filled up that the water overflowed, and that if he was not working for them he would be the' first one to sue them and make them open it up. Objection to this question was sustained by the court. While we recognize the rule that much latitude and discretion is allowed the trial court as to cross-examination of witnesses, yet we are aware that, if the ruling of the court confined the scope of the cross-examination within too narrow limits, thus stripping it of any benefit, the rule will constitute it reversible error.—Wilson v. State, 195 Ala. 675, 71 South. 115. As the cause must be reversed on other grounds, however, we need not state a conclusion as to whether this ruling of the court would result in a reversal of the judgment. The principles governing cases of this character are sufficiently stated in the authorities herein cited, and we deem it unnecessary to further treat the assignments of error. Reversed and remanded. Anderson, C. J., and McClellan and Sayre, JJ., concur.