Ohio & Mississippi Railway Co. v. Ramey

Citations

• 139 Ill. 9
• 28 N.E. 1087
• 1891 Ill. LEXIS 1180

Syllabus

<p>1. Railroad compart—constructing embankment near water-course— duty to provide for ordinary and extraordinary floods. It is the duty of. a railway company to so construct and maintain embankments bordering upon a water-course, for its tracks, as not only to admit the flow of .water in the stream in ordinary floods, but so as not to flood the lands above in extraordinary rains, such as may be anticipated by prudent persons.</p> <p>2. Although a rainfall may be more than ordinary, yet if it be such as has occasionally occurred, and, it may be, at irregular intervals, it is to be foreseen that it may occur again, it is the duty of those changing or restraining the flow of water to provide against the consequences that will result from it.</p> <p>3. In an action against a railway company to recover damages for the obstruction of the flow of water by an embankment, and thereby overflowing upper lands, the question will not be whether the defendant has sufficiently provided for the escape of the water of ordinary floods, ■ but, has it provided for the escape of the waters of such unusual or extraordinary floods as it should have anticipated would occur in the future, because they had occasionally occurred at intervals, though of irregular duration, in the past.</p> <p>4.- Pbactioe—submitting to jury an immaterial interrogatory—failure to answer. In an action against a railway company for negligence in constructing an embankment for a track over bottom land bordering a water-course, whereby water that would have flowed away was backed and thrown over plaintiff’s land and his crops injured, the court, at the defendant’s request, submitted to the jury the question whether the plaintiff’s damage complained of was the direct result of an extraordinary rainfall on a day named, which the jury neglected to answer, and the court refused to require the jury to answer the same: Held, no error, as the question submitted was immaterial.</p>