[Clipping: Chicago, Rock Island, and Gulf Railway Company v. Martin. No. 12422] Part: 4 of 6
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37 SOUTH WESTERN REPORTER, 2d SERIES
'2, 3] We think there can be no question
])t that the indicated objections to special
issue No. 4 were well taken. In addition to
the testimony above quoted, there was other
testimony tending to show that the damage
claimed, if any, was not caused wholly by
insufficient causeways in the embankment of
the railway, but in part at least by reason of
the gradual and long-continued erosion of the
watershed and the filling and leveling of the
natural drainage channels by flood waters.
The plaintiff's action was predicated upon
allegations to the effect that the damage was
the proximate result of insufficient openings,
but, if the injury complained of was caused
in part by other things, the railway company
can only be held liable for the portion of the
injury proximately caused by waters imped-
ed by it. See Ry. v. Vogt (Tex. Civ. App.) 181
S. IV. 841; Ry. v. Wright (Tex. Civ. App.) 195
S. W. 605; Ry. v. Gurley, 37 Tex. Civ. App.
283, 83 S. W. 842; Taylor v. Ry., 36 Tex. Civ.
App. 658, 83 S. W. 746.
14] The defendant sought to correct the ob-
jections to the issues mentioned by his spe-
cial charge No. 3, which the court refused,
and to the refusal of which exception was
taken and error liere assigned. That charge
was as follows: "Gentlemen of the jury: If
you believe from the evidence that plaintiff's
>aid lands, or any of same, were damaged by
rains that fell after December 15th, 1925, and
before the filing of this suit, and that such
lands would have been inundated and dam-
aged to some extent by such rains irrespective
of the presence or condition of defendant's
railroad embankment or openings through
same, then you are instructed that even if
you should believe further from the evidence
that the presence or condition of the embank-
ment or opening therein held back or caused
to be held back and diverted over plaintiff's
said land additional waters in sufficient
amount to cause additional damage to such
lands in excess of the damage that would
have resulted irrespective of the presence of
said railroad, and if you find the evidence be-
fore you does not show or enable you to de-
termine therefrom what portion of the dam-
age was proximately caused by the presence
or condition of said railroad embankment in
question, you will not undertake to assess any
damage based upon mere surmise and specula-
tion in response to special issue No. 4 in the
Court's Charge."
The authorities already cited indicate, we
think, that this charge should have been giv-
en, and, because of the errors indicated, we
think that the judgment must be reversed.
In view of another trial, however, we will al-
so notice that objection was taken to the
court's definition of "proximate cause."[5] It will be noticed by
nition imposes liability
"could have been foreseenits reading the defi-
for events which
under all of the at-tending circumstances." As hereinbefore
stated, the condition of the Salt Creek Valley
and its watershed and streams at the time of
the construction of appellant railway compa-
ny is not shown, and it was only required to
use due care to provide such embankments
and causeways for the escape of flood waters
as from the history of the country or other cir-
cumstances could reasonably be then seen.
The evidence in this case shows but two oc-
casions when the waters from Salt and Gar-
rett creeks accumulated at great depths on the
south side of the railway embankment, and
we cannot say from the evidence before us
whether there were at any previous time
floods sweeping over Salt Lake Valley of the
same character.
In view of another trial, we also call atten-
tion to appellant's objection to the testimony
of the plaintiff, Martin. He was asked the fol-
lowing questions and gave the following an-
swers: "Q. Are you acquainted with what the
reasonable market value of your land was per
acre during the period from November 1925 up
to the Spring rains in 1926; are you acquaint-
ed with the reasonable market value of your
land what it was at the time and in its then
condition? A. I don't think I could say. 1
think I am acquainted with its present mar-
ket value. I know of the sale of lands down
there in the last year or two. I know of three
tracts. As to whether I know of that myself
or whether it is just hearsay, I know of the
parties interested ; some of them told me
about it, the man that sold the land told me
about it. Certainly, all I know is what they
told me; I didn't see the closing of the deal.
I had no connection with the deal and was
not present when made. It was not land in
that Salt Creek Valley. It was what you
would call the Paradise trade territory. Part
of it was up-land, and some of it valley land.
the part sold. It was a different character of
land from my land. What I have heard rela-
tive to those sales I have mentioned, is all I
know about the lands there; that is all I
know is what I have heard."
He was then permitted to testify that "I
would say the reasonable market value of my
land per acre in 1925 and 1926 was $20.00 per
acre. The reasonable market value of my
land per acre at the time of the filing of this
suit was about $12.50 per acre."
[6] We think the witness was not qualified
to testify as to the values, and that the cotn:
should have sustained the objections to the
testimony. See Humble Oil & Refining Co. _,
McLean (Tex. Com. App.) 280 S. W. 557, and
J. B. Watkins Land Mortgage Co. v. Camp-
bell et al., 98 Tex. 372, 84 S. W. 424, therein
cited.
Objection was also made to testimony of
other witnesses who testified as to values, but
we think the authorities cited will be sutli-
cient guide for the action of the court upon an-
other trial.210 Tex.
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Reference the current part of this Clipping.
Buck, J. [Clipping: Chicago, Rock Island, and Gulf Railway Company v. Martin. No. 12422], clipping, 1931~; St. Paul, Minnesota. (https://texashistory.unt.edu/ark:/67531/metapth1154863/m1/4/: accessed June 12, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Hardin-Simmons University Library.