(after stating the facts). The following special propositions are urged to reverse the judgment:
•First. That the-damage to plaintiff’s crops was caused by the obstructed condition of the drains and culverts; that, by the terms of its right of way deed from'the plaintiff, defendant was not bound to maintain the drains and culverts across its right of way free from obstruction, but that it was plaintiff’s duty to keep them open. The clause -of the deed referred to is as follows : “It is further expressly understood and agreed * * * * that all drains, both natural and artificial, shall be so bridged or protected by culverts that the flow of water from said lands and lands adjacent shall be in nowise impeded or restricted.” Clearly, the language of the deed contemplates that the railroad company should maintain its bridges or culverts so that the natural flow of the water should not be obstructed or impeded. . Obviously, the railroad company never intended to give up any part of its control over its roadbed, for such a course would not only tend to hinder it in the operation of its trains, but would endanger the lives of its employees and passengers. • .
Moreover, independent of any contract, the duty of maintaining its culverts so as not to impede the free passage of the surface water was cast upon the defendant. The drains and-culverts were allowed to fill up and become obstructed by the falling of dirt when the defendant was raising its roadbed, and they could have been cleaned out at a reasonable expense. This rule was announced in the case of Little Rock & Ft. Smith Ry. Co. v. Chapman, 39 Ark. 463, and has been followed by the court ever since. A citation of only a few of the later cases is necessary. Baker v. Allen, 66 Ark. 271 ; Chicago, Rock Island & Pacific Ry. Co. v. McCutchen, 80 Ark. 235; Little Rock & Ft. Smith Ry. Co. v. Wallis, 82 Ark. 447.
The allegations of the complaint are sufficient to sustain an action for damages, aside from the liability imposed by the contract, and the measure of damages would be the same whether the action is founded on the contract or on the liability of the railroad independent as announced in the Chapman and other cases supra.
Second. That the court did not correctly instruct the jury as tc the measure of damages. The instruction given hy the court on that point at request of the plaintiff is as follows’:
“You are further instructed that if you find from a preponderance of the evidence that defendant was guilty of negligence in maintaining its roadbed, and thereby obstructed the natural drainage of the surface water from plaintiff’s land and caused them to dam up against said roadbed and flow back over plaintiff’s land and damaged or prevented making crops thereon, your verdict will be for plaintiff for such actual damages as the evidence shows he sustained during the years 1904, Í905 and 1906 as was the result and solely due to the negligence of the defendant, with interest thereon from the time such damage occurred; and in arriving at the amount of damages from the evidence you will take into consideration the loss of rental value of the cleared land that he was unable to cultivate; the extra cost of planting and working his crop, less the extra cost he would have been to in gathering and working so much of the yield as was lost; the cost of reclearing land caused to have grown up by being forced to lie out as the result of such negligence; and, after finding the sum of such' losses for the years 1904, 1905 and 1906 as the evidence convinces you that plaintiff has sustained, and the interest on the same from the time such losses occurred at six per cent, per annum, you will return into court written on the complaint a verdict for plaintiff and assess his damages at that sum.”
At the request of the defendant the court gave the following instruction on the measure of damages:
“15. If you should find for the plaintiff, you should assess such amount of damages as you find he has actually sustained as the necessary result of defendant’s negligence, and the measure of his damages would be the cash value of the crops at the time they were destroyed, provided you find such destruction as alleged. And, in arriving at the measure of the value of his crop alleged to have been destroyed, you may take into consideration the fertility of the soil upon which they were growing, the state of their cultivation, their condition at the time of destruction, the favorable or unfavorable season following for the maturity of the crop with their probable yield; you will also take into consideration further expense of cultivation, if any further cultivation was needed, the additional expense of gathering and marketing them, and also the impending hazard or peril of weather and storms between the times they were destroyed or injured and the close of the season for maturing and gathering the same.”
Appellant railway company urges that the instruction given by the court at the instance of the plaintiff allows double damages. In other words, that it directs the jury to find for the damages of the cleared land that appellee was unable to cultivate, its rental value, and also the extra cost of planting and working it.
The different elements of damages were correctly stated in the instruction of which complaint is made. It is true that the naming of all of the elements of damage in one instruction may have caused confusion in the minds of the jury and thus have influenced it to apply an element of damage to a class of lands to which it was not applicable, but we do not think such was the result.
The testimony introduced, the instruction given on the measure of damages at the instance of the defendant, now appellant, and the whole conduct of the trial as disclosed by the record, show that the case was tried on the theory that the damages to the crop were its actual value, where it had matured sufficiently to have a market value at the time of its destruction, and that on the cleared land which could not be cultivated the damages were limited to its rental value. There was an evident intention to follow the rule laid down in the case of Railway Company v. Yarborough, 56 Ark. 612, and the later cases of St. Louis Southwestern Ry. Co. v. Morris, 76 Ark. 542; Little Rock & Ft. Smith Ry. Co. v. Wallis, 82 Ark. 447, and St. Louis, I. M. & S. Ry. Co. v. Saunders, 85 Ark. 111.
Appellant’s counsel must have known the meaning the court intended to convey by the instruction, and, instead of making a general objection, should have requested a specific instruction which would have eliminated the fault. St. Louis, I. M. & S. Ry. Co. v. Hoshall, 82 Ark. 387; St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255.
Third. Counsel for appellant asks for a reversal of the judgment because, in ascertaining the value of the damaged crop, Daniel, the manager of the plantation, was permitted to answer the following question:
“Did you have a similar piece of land, similarly situated, similarly cultivated, similar area, that you cultivated in 1905?”
It is claimed that this was permitting Daniels to give his opinion to the jury as to what the damaged lands would have produced, and as to what tracts were similar. Daniels had already testified what amount of cotton and of cotton seed the damaged land produced. His answer to the question and to those of. similar import 'shows that he simply stated to the jury what an equal area of adjoining land of similar quality of soil produced the same year when cultivated by him in the same manner as the overflowed land. The jury were left free to determine whether the negligence of the railroad caused the difference in production and how much of it was caused thereby. The facts were stated to the jury, and under the instruction of the court they were left to draw their own inferences.
Fourth. Counsel for appellant also asks a reversal on account of the second instruction, which is as follows: “No. 2. The jury are instructed that if they believe from the evidence that the parties working the land, claimed to have been damaged, were share hands working for a proportion of the crop, and no part of it belonged to the parties working the land but to the plaintiff, then he is entitled to recover the entire damage and not the share hands; that the share hands were not the owners.” Daniels was the only witness who testified on that point, and we quote from his testimony as follows:
“Q. I want you to explain just what kind of a contract you have with 'your hands — whether or not' you actually rent any land.
“A. I don’t rent any land' at all. I furnish the hands to make the crop. When the crop is gathered and ginned, I get one-fourth, and their provision and supplies come out of their part.
“Q. Have you any other kind?
“A. Some work on the halves under the same contract.”
This testimony shows that the owner did not intend to rent the land, and, taken in connection with his other testimony, shows that the owner had control of the land, and that the other parties were merely hired to make the crop. Hammock v. Creekmore, 48 Ark. 264; Tinsley v. Craige, 54 Ark. 346.
The witness Daniels made a detailed statement of the amount of damage suffered, and it is sufficient to say that his testimony warranted the verdict.
Finding no reversible error in the record, the judgment is affirmed.