Humphrey v. Chicago, Burlington & Quincy Railroad

*344ON REHEARING.

A re-examination of the record and briefs has convinced ns that a proper disposition of the case was made in the foregoing opinion. Counsel for defendant earnestly insist their position is well taken, i. e., that the action should fail because of a vital difference between the allegations of plaintiff’s petition and! his proof. We give full effect to the rule that where the petition grounds a cause of action ex delicto on specific causes or acts of negligence, the plaintiff must recover, if at all, on the proof of the precise causes or acts ■averred; but, obviously, that rule should not be applied to acts or facts that are merely incidental and have no true place in the chain of casual events. The gravamen •of the present action was the collection by defendant •of surface water which, but for defendant’s interference, would have flowed off in the two natural water courses mentioned and1 the precipitation of such water in a body on plaintiff’s land. The means by which this result was accomplished were the two inadequate culverts and the drain pipe installed midway between them for no other conceivable purpose than to drain, off the surplus water which the deficiency of the culverts would cause to accumulate on the east side of the railroad embankment during heavy rains.

So far as the purposes of this case are concerned, the two culverts and drain pipe constituted a single ■construction, the practical office of which was to drain off surface water only in a way that would injure the land on the west side of the track. The whole construction constituted a single act of negligence, and that act clearly was the prime cause of the injuries inflicted on plaintiff’s land in 1906 and 1907. It is wholly immaterial that no water backed up from the -lower ■culvert in the storm of 1906 and that all of it came from the upper stream and purely incidental is the fact — if it •be a fact — that no water would have been sent to the *345drain from the lower culvert in 190-7 hut for the installation by defendant of a right of way fence which, by collecting debris, served to obstruct that culvert. When defendant put in the culverts, it should have-taken into account the fact that necessary fences when built might offer some obstruction to drainage, and should have made the culverts large enough to carry off surface waters from any and all storms except one so extraordinary as to be classed an act of God.

The very fact that defendant found it necessary to put in the drain pipe was a confession that the- culverts were not properly built and amounted to a declaration of defendant’s purpose to relieve its own property of the consequences of its own blunder in a way necessarily injurious to its neighbors. The judgment in this ease is so manifestly for the right party that we would do wrong to disturb it on grounds so technical as those urged for a reversal. The judgment is affirmed.

All concur.