#### Goddard, Respondent, vs. Chicago, Burlington & Quincy Railway Company, Appellant.

*April 28*—

May 24, *1910.*

*Railroads: Bridges: Obstruction of waters: 'Negligent construction: Guarding against floods: Injury to property: Instructions to jury.*

1. In an action for injury to hay by flood waters alleged to have been obstructed and set back by reason of the negligent construction and maintenance of a railway bridge across a river and adjacent bottom lands, the evidence is *held*to support a verdict in favor of the plaintiff.

2. In such case the jury were properly instructed, in effect, that in building bridges of this kind the surrounding conditions and the liability of the adjacent property to injury must be considered, and that defendant was bound to know and to take into consideration those things which were apparent and to exercise ordinary care in adjusting the construction of its bridge to the situation.

3. A railway company in constructing a bridge should anticipate and provide against floods and freshets which, from having been known to occur at longer or shorter intervals, may reasonably be expected to occur again, but need not make provision against unusual or extraordinary floods such as could not be foreseen by men of ordinary experience and prudence.

Appeal from a judgment of tbe circuit court for La Crosse county: J. J. Eeuit, Circuit Judge.

*Affirmed.*

Eor tbe appellant tbe cause was submitted on tbe brief of *Woodward & Lees.*

Eor tbe respondent there was a brief by *Morris & Hart-■well*and *Winter &*Fsch, and oral argument by *Frank Winter.*

TimliN, J.

Tbe plaintiff sought to recover damages done to a quantity of bay in bis bams and also for growing grass destroyed by a flood in the La Crosse river bottom lands on July 21, 1907. He contended that tbe flood waters were *170obstructed, dammed up, and set back upon bis bay and grass-by reason of tbe negligent construction and maintenance of a railroad bridge across this river and bottom land by tbe defendant. Tbe jury by special verdict found tbat tbe rainfall wbicb caused tbe flood was one that ought reasonably to have been anticipated, and tbat tbe bridge was not of sufficient capacity to allow tbe passage of tbe waters of tbe flood and of tbe driftwood and other material brought down thereby; tbat such want of capacity was tbe proximate «cause of plaintiff’s injury, while the amount of bis damages was $750. Eor this sum and costs tbe plaintiff bad judgment.

Tbe defendant, appealing to this court, contends tbat tbe flood was extraordinary and unusual, and tbat there is no sufficient evidence to show tbat plaintiff’s damages were caused by tbe negligent construction or maintenance of the bridge in question, and tbat tbe court erred in its instructions to the jury. We are furnished by tbe appellant with no map or chart, and for this reason find it difficult to get relative boundaries^ courses, or directions with accuracy. Such map and survey are almost indispensable when the appellant claims, as it does here, tbat by mathematical calculation and proper interpretation of tbe testimony it appears affirmatively tbat tbe plaintiff’s damages were not caused by tbe inadequacy of tbe bridge in question.

We gather from the oral evidence tbat tbe La Crosse river, with tbe adjacent wide bottom lands, extends from Medary southwest about four miles to its junction with tbe Mississippi river. This extension is crossed by several bridges between Medary and tbe Mississippi, tbe farthest upstream being tbat of tbe Chicago, Milwaukee *&*St. Paul Railway Company running east and west, having a clear opening for tbe passage-of water of 2,768 square feet; next tbat of tbe Chicago & Northwestern Railway Company running east and west and having a clear opening for tbe passage of water of 3,075 square feet; next a wagon road and bridge, called tbe *171Abattoir Road, running easterly and westerly, having a clear-opening for such passage of 2,074 square feet; next the roadbed and bridge of defendant running north and south, the bridge constructed upon piles in bunches or bents with twelve-foot spaces between the bents for the passage of water, and the sum of these clear spaces is equal to 6,565 square feet, of which 3,375 square feet is under that part of the bridge which spans the river. Four other railroad bridges cross the river and adjacent bottom lands between the bridge of defendant and the Mississippi river.

The flood took place on or about July 21, 1907, and was-caused by a rainfall on that day of 4.48 inches in fourteen and one-half hours at La Crosse and a considerably heavier rainfall at the same time on the upper waters and tributaries of the La Crosse river. Haying was at this time in progress on plaintiff’s farm, which is in the bottom lands mentioned and part of which is upstream from defendant’s railroad bridge. Plaintiff had nine bams in which his hay was stored, eight of them above this bridge in question. The-damages claimed to growing grass practically dropped out of the case before verdict, and' it is apparent that the verdict of the jury is based upon the damage done to hay in some of these bams by the flood. Between the defendant’s bridge and the Abattoir Road bridge the river banks are higher than the bottom lands lying further from the river, and the surface of the water in the river at ordinary stage is higher than the bottom lands which lie at some distance from the riverbanks. This, as is well known, is not an unusual condition in deltas and flat alluvial valleys.

We are unable to ascertain with accuracy how far it was from the northwest boundary line of the flood to that point in the defendant’s bridge where the bridge spans the river channel. From a point called Grand Crossing south on defendant’s line of railroad the track appears to rest on piling for more than 3,000 feet in length, and at 3,000 feet from that *172■crossing is tbe railroad bridge in question, 748 feet long, starting from tbe northerly river bank and crossing tbe river channel with seven bents of piles in the river and extending south over tbe south bank and over tbe adjacent bottoms about 650 feet. This bridge is six or seven feet above tbe ordinary surface of tbe water where it crosses tbe river, and also from three to seven feet over tbe bottom lands where it crosses tbe bottoms. Were this and tbe relative area of openings in tbe several bridges for tbe discharge of water all that appeared, it might be difficult to support tbe verdict. But there was evidence that lumber, planks, bay, brush, and trees were carried down by tbe flood and lodged against tbe piling of this bridge. Tbe openings under tbe upper bridges were large enough to permit this *debris*to pass through. There was also evidence that tbe piling under defendant’s bridge and roadway bad been repaired some four years previously, and that in doing so tbe old piles were not extracted, but were cut off at tbe ordinary water level, leaving tbe stumps. There was also evidence of tbe extent to which tbe water was dammed up by this condition, and several witnesses testified from observation at tbe time, and from flood marks observed immediately after tbe subsidence of tbe flood, that tbe water was two feet higher on tbe east or upstream side ■of defendant’s bridge .and track than on tbe west or downstream side. Tbe figures of levels and measurements furnished by tbe defendant are not sufficiently explicit to demonstrate that this testimony is impossible. Many necessary •data are omitted. A mere smattering of hydraulics is sufficient to inform' one that comparative measurements of tbe openings for tbe escape of water under tbe several bridges could not alone determine tbe question whether defendant’s bridge dammed back tbe water. This relative area of openings is only one of many factors to be considered. Obstructions in tbe channel or near tbe channel at or near defendant’s bridge, tbe extent to which tbe flow of water was obstructed by *debris*of tbe flood, tbe depth and direction of tbe *173current, the sinuosities of the channel, the reservoirs formed by expansions of the flood above stream and between the bridges, the angle at which the current approached the congested bents, all affect this condition. It would be presumptuous in us, on the meager data we have before us, to decide that the court below and the jury had no evidence upon which they could find for the plaintiff. *Spelman v.*Portage, 41 Wis. 144.

The instruction criticised related to the second question of the special verdict, which inquired whether the bridges of the defendant were of sufficient capacity to allow the passage of the flood waters with driftwood and other materials, etc. The court instructed the jury that the defendant was bound to know and take into consideration in the erection of its. bridges the area of the La Crosse river valley, the bluffy nature of its sides rendering it subject to a rapid rise of the water, and the fact that at times it carried large quantities of brush and *debris*and sometimes stumps and trees, and the amount of rainfall in the past, the occurrence of high water in the past, the location of plaintiff’s barns, their liability to be injured, and each and every fact within its knowledge affecting the height of the water and its liability to do damage. In criticising this charge we must keep in mind that the right of the defendant to construct and maintain the bridge in question is not denied. The inquiry is whether it exercised that right carefully, or whether by lack of ordinary care it so exercised that right as to injure others. *Schmeckpepper v. C. & N.*W. *R. Co.*116 Wis. 592, 93 N. W. 533. The instruction in this respect amounts to informing the jury that in building bridges of this kind the surrounding conditions and liability of the adjacent property to-injury must be considered, and that the defendant is bound to know and take into consideration those things which are apparent and exercise ordinary care in adjusting its construction to the situation.

We see nothing improper in this instruction so construed. *174We do not think that ordinary readers or hearers would understand this language to mean more than this, although a separation of parts and literal reading of such separated parts might give it a more extended meaning. If a bridge built ■on piles twelve feet apart would he to one of ordinary care and prudence apparently insufficient to allow the passage of ■floods and the escape of brush, driftwood, and *debris*carried by .the flood, and injury to others was likely to result from such lack of escape, then ordinary care would require some other form of bridge construction or some other means of preventing the injury. This does not mean that the defendant must ascertain the exact area of the La Crosse' river valley, but it must notice these things in plain sight, and that floods do occur, and that floods carry *debris,*and the usual high water in the past, and the liability to injury of adjacent property, all of which is ordinarily and usually taken into consideration in the construction of a bridge.

Instead of submitting to the jury directly the question whether the flood of July 21, 1907, was an unusual or extraordinary flood, the court submitted: “Was the storm of July 21, 1907, and the flood resulting therefrom in the La Crosse river, such as should reasonably have been anticipated to occur?” But in connection with this question the court ■explained to the jury that they were to consider whether the flood was an unusual or extraordinary flood, explained the terms “unusual” or “extraordinary,” instructed that the railroad company constructing an embankment or bridge is not required to make provisions against such unusual or extraordinary floods as cannot be foreseen by men of ordinary •experience and ordinary prudence in the locality where such flood occurs, but that the defendant ought reasonably to have •anticipated all floods and freshets which occur annually or at longer intervals, and which, from having been known to occur at longer or shorter intervals, may be reasonably expected to occur again. As explained by this instruction the ques*175tion seems reasonably clear, and we find evidence in tlie record upon wRicR the jury might well have found that, notwithstanding the excessive rainfall in the upper valley of the La Crosse river, the flood on July 21, 1907, was not unprecedented, hut that higher floods occurred in 1876, 1884, ¡and 1900.

*By the Oourt.*— Judgment affirmed.