Sentman v. Baltimore & Ohio Railroad

Briscoe, J., delivered the opinion of the Court. This was an action on the case instituted in the Circuit Court for Cecil County, by the appellant against the appellee, to recover damages for alleged injuries to the appellant’s property, caused by an overflow of surface water from ditches and drains on a railroad constructed by the defendant corporation. The appellant is the owner of a farm in Cecil County, and contends that the defendant company in the construction of its railroad had, by artificial cuts, fills and drains, changed the natural surface drainage of certain lands, and had caused the water to flow upon his land, so that in the month of August, 1889, and of July, 1891, his property had been seriously damaged thereby. The defence on the part of the company was, that the damage complained of was caused by an extraordinary and unusual rain-fall, that is, by the vis major. The verdict and judgment were in favor of the defendant, and the plaintiff has appealed. At the trial the Court granted all the instructions asked for on both sides, and the only exception is to the granting of those on behalf of the defendant. The main objection is urged to the fourth and fifth prayers, and il is upon these that the appellant rests his appeal. It is, therefore, on these two prayers that the questions arise to be decided by this Court. In the fourth instruction the jury were told, that if the injuries to the plaintiff’s property were caused solely by an extraordinary and unusual rain-fall or flood, and not by want of ordinary care and skill upon the part of the defendant in the construction or maintenance of its railroad, then their verdict should be for the defendant. To this in [228] struction the plaintiff made special exception, on the ground, first, that there was no legally sufficient evidence before the jury upon which it could properly be left to it to find, that the injuries were caused solely by an extraordinary and unusual rain-fall or flood; and secondly, because there was no legally sufficient evidence of any such extraordinary or unusual rain-fall or flood, as comes within the description of what is called an “act of God. ” The exception, ho.th general and special, was overruled. We have carefully examined the evidence set out in the record, and are of opinion that there was no error in the overruling of this exception. The facts upon this branch of the case are these: McNamee, a -witness for the defendant, testified that there was a very heavy rain on the night of July 28th, 1891, and it rained harder than he had ever known it during the seven years he was there; don’t believe he had ever known it to rain harder in his life. The witness Rutter stated, that he lived in sight of plaintiff’s house, and had resided there more than thirty-five years, that he remembers the storm of July, 1891, and thinks it was the heaviest rain he had ever known in that locality. There was an extraordinary fall of water. The witness Craig testified, that he had resided in that section for fifteen years, that he remembers the storm of July 28th, 1891, and it was an'extraordinary rain. It began to rain .between 10 and 11 o’clock at night, and rained continuously until about i o’clock the next morning. It was the heaviest fall of rain he had ever seen in the same time. He may have seen it rain as hard, but he never saw it rain so hard so long. He was sitting up with a sick man, John Russell, who lives right at the station. He noticed the storm particularly, and went out on the porch two or three times during the [229] night. There may have been as much of a rain-fall in the flood of 1876, but then it rained two days and nights. And it was in testimony by the witness Jackson, that lie had lived in the immediate section for about seventy years, and the storm of July 28th, 1891, was the most extraordinary rain-fall he had ever known. And, in reference to the damage done by the flood of 1889, there was evidence on the part of the plaintiff that the character of the damage done by the two floods was of the same kind, but the amount done by the flood of July, 1891, was far greater than that done by the flood of August, 1889; that Amos H. Rutter and Absoiom Jackson had appraised the damage done to the plaintiff’s property by the flood of August, 1889, and that when he (Moore) went there at the request of plaintiff to appraise the damage done by the flood of 1891, he asked Mr. Absolom Jackson whether he (Jackson) had not appraised the damage done to the plaintiff's property by the flood of August, 1889, at $250; and when he answered that he had, said to Jackson, “don’t you think the damage done by this flood three times as large as that done by the flood of 1889?” And Jackson replied, “that he did.” There was also evidence that the ditches and drains were in good order, and always kept open, and that such was their condition before the storm. That the storm caused a large cave-in during the night, and filled up the ditch on the north side of the road which dammed up the water. Without, therefore, entering into any further recital of the facts, we are clearly of opinion that there was evidence legally sufficient to require the case to be submitted to the jury, and therefore there was no error in overruling the exception to this prayer. The fifth prayer of the defendant reads thus: “If the jury find the Acts of Assembly of 1826, chapter 123, and 1884, chapters 232 and 233, that then, by a [230] proper construction of said Acts, the defendant was empowered to locate and construct the railroad mentioned in the evidence, and to make such cuts and embankments as were necessary for the same, and if they find, by reason of the cut mentioned in the evidence, large quantities of surface water from the lands of the adjoining proprietor or proprietors, upon the occasion spoken of by the witnesses, ran upon the defendant’s right of way; and further find that said waters escaped from defendant’s right of way, and ran upon the lands of the plaintiff, solely in consequence of the clogging or filling up of the defendant’s side ditches, occasioned by the sudden caving-in of the lands along said right of way or otherwise, caused by an extraordinary rain which could not reasonably have been anticipated; if they shall so find, that then, before the plaintiff can recover for any injury occasioned thereby, the jury must be satisfied that said clogging or filling up of said ditches was due to a want of ordinary care upon the part of the defendant. ’ ’ This instruction, in connection with the other prayers, we think, placed the case properly before the jury. In the case of the Phila., Wilm. and Baltimore Railroad Company vs. Davis, 68 Md., 291, where a railroad company undertook to alter an established outlet through which the surface water was carried, this Court held, that it was incumbent on the corporation to have the work done in a careful and skillful manner. If done carelessly and negligently so that, as a consequence, injury to the plaintiff ensued, an action for damages was maintainable. It is well settled that the “construction and repair of sewers, (the same rule would apply to railroad ditches and fills,) are simply ministerial duties, and for any negligence in so constructing a sewer, or keeping it in repair, the municipality who has constructed and owns it, may be sued by a person whose property is thereby injured. ” Johnston vs. District of Columbia, 118 U. S., 19. [231] (Decided 16th November, 1893.) The rule was established by this Court in Davis’ Case, 68 Md., 291, that the outlet must be of ample capacity to carry off' all the water likely to be in it. But the rule is not applicable to an extraordinary and •excessive rain-fall, which is held to be vis major. Such infrequent and extraordinary occurrences cannot be fore•seen and provided against, and for damages caused by them no one is responsible. In the case of Gulf, Colorado and Santa Fé Railway Co. vs. Pomeroy, 67 Texas, 498, it was held, that “if the -overflow was of such an extraordinary character that railroad engineers of ordinary care and prudence in the construction of the embankment and culverts could not ¿reasonably be expected to have anticipated and provided against, the railroad was not liable.” In the case now under consideration the prayers as offered seem to us fairly to lay down the law of the case on all the questions, and as we discover no substantial error in any of them, and as the evidence was legally .sufficient to submit the case to the jury, the judgment •will be affirmed. Judgment affirmed.