Piedmont & Cumberland Railway Co. v. McKenzie

Bryan, J., delivered the opinion of the Court. McKenzie brought suit against the Piedmont and Cumberland Railway Company, a body politic and corporate. The plaintiff averred in his declaration that the defendant had built a bridge across the Potomac river, and that it was constructed and maintained in so negligent a manner that its superstructure fell into the regular and usual channels of the river and obstructed the o flow of its waters, and collected large quantities of logs, trees and debris, and changed and diverted the current of the river so as to overflow the lands of the plaintiff, wash away the soil, and destroy his fences and crops. The evidence showed that a great flood occurred in the Potomac river in May, 1889, and that defendant’s bridge was carried away; that the superstructure fell into the stream and turned aside the course of the water and caused it to flow upon the plaintiff’s land and wash away the soil, fences and crops, and inflict great damage. The evidence was very conflicting in reference to the construction of the bridge; tending on one side to show that it was not properly constructed, and on the other that it was constructed with more than ordinary care. The. evidence on both sides showed that the flood of May, [463] 1889, was the greatest which had occurred in the Potomac for many years with the exception of the flood of ISTT. Two prayers were granted on the part of the plaintiff, and three on the part of the defendant. The instructions were in entire harmony with each other. They left it to the jury to find whether the bridge was negligently and unskilfully built, and whether the damage to the plaintiff was caused by such negligence and unskilful construction; and they told the jury that the plaintiff was entitled to recover if his damage was caused by the improper construction of the bridge; but that he could not recover if the bridge was constructed in such manner, and was in such condition of repair as to carry off the water of the ordinary floods of the Potomac, and to resist the force of the same, and if it was carried away because of the unusual height and destructiveness of the flood of 1889, and not by reason of its negligent and unskilful construction. These instructions seem to us to cover the case very fully. The third and fifth prayers of the defendant (which were rejected,) were merely repetitions in different language of what the Court had ruled on other prayers. The sixth prayer, (which was also rejected,) required the jury Cito find that said flood of 1889 was an extraordinary and unusual one, and One that the defendant was not required to anticipate or provide against in the erection, construction or maintenance or location of its said bridge constructed in 1886.” We might criticise the form of this prayer, but it is not material to make any comment on it; inasmuch as we suppose that it was an admitted fact at the trial that the flood of 1889 was very extraordinary and unusual in its violence. If, however, it was intended to instruct the jury that the defendant was not responsible for the damage .'caused by it, without making further explanation of the qxiestion, it was erroneous and mis [464] leading, and was therefore properly rejected. It disregarded the evidence bearing on the construction of the bridge, and did not inform the jury what effect it ought to have on their verdict if they should find that it was defective and unskilful. If they found that notwithstanding the violence of the flood, the injury would not have occurred provided the bridge had been skilfully and properly built, the plaintiff was entitled to recover; and this qualification ought to have been made to the general proposition contained in the prayer. It proposed to instruct the jury, that the defendant was not obliged to provide against extraordinary and unusual dangers; and this was unobjectionable as far as it went, hut it left without notice the questions whether the bridge actually built was strong enough to resist ordinary and usual floods, and whether the damage was caused by deficiencies in this respect. We think that the prayer ought not to have left the jury without proper instructions on these points. (Decided 15th March, 1892.) Judgment affirmed.