I cannot agree with the conclusion reached by the majority that a question of fact was made for the jury in these cases, and I, therefore, respectfully dissent therefrom.
It is undisputed in this record, admitted by the engineers representing both sides, that the elevation of the Byrd levee as rebuilt after being dynamited in 1932, was 231.29 to 231.70 feet above sea level; that as rebuilt it was from 1 foot to 1 1/2 feet higher than the former levee; that the elevation of the north bank of Pennington bayou was from 230.65 to 232.8; and that the lowest point on the highway, according to appellant's witness, Lefever, was 231 feet and, according to appellee's witness, Allen, was 230.85, or a difference of .15 of a foot. Now, it cannot be denied, in fact is undisputed, that the water in July, 1932, ran over the low point in that highway for a considerable distance and at a depth of 12 to 18 inches, according to many witnesses. Trucks traveling the highway ran through this water and it was over the running boards. Appellees' witness, Dyson, stated that he drove a model "T" Ford through the water and said it was upon the running board, and was from 15 to 18 inches deep. Children waded through it and appellee, Coleman, who saw them wading estimated its depth at from 4 to 18 inches. Appellees' witness, Mack Jones, drove an ice truck through the water at least twice daily, and said it was from 16 to 18 inches deep. It is said that these are mere estimates, but it seems to me they are something more. While no one actually measured the depth of the water at the low point on the highway with a yard stick, still Dyson knew it went over the running boards of his Ford which he said were 16 inches high, and Coleman used the legs of wading children for his measuring stick. If the water went over the highway at all and came from the bayou as appellees contend, then it is bound to have gone over the levee and the north bank of the bayou, *Page 173 even though the levee had not gone out. For the purpose of this opinion I assume that the levee broke and that the pole in it caused it to break, but if the water went over the levee or north bank of the bayou, or would have done so if it had not broken, then the breaking of the levee was not the proximate cause of the overflow and consequent damage to appellees, and appellant is not liable. The lowest point on the levee as rebuilt was 231.29. The lowest point on the highway was 231. It would require only a very few inches of water on the highway to put it over the low point on the levee and over the north bank of the bayou. Now if the levee were a foot lower at the time of this overflow as the undisputed proof shows, and the water on the highway was a foot deep, then it was bound to have gone over all the levee and over all the north bank of the bayou. There can be no speculation or conjecture about it, as the fact that water seeks its level and will not rise beyond its source, unless under pressure, is as true as truth itself.
Another undisputed fact which appears to the writer as an act of God to demonstrate the futility of the claims of appellees is the overflow occurring in January, 1937, a fact not mentioned in the majority opinion. Appellees' engineer, witness, Allen, testified that in that overflow all the Byrd levee, except a very short strip west of the telegraph pole placed in the levee as rebuilt at about the same place and which is still there, and both the north and south banks of the bayou, overflowed to a considerable depth. This witness said the water in January, 1937, reached to a maximum height of 232.5, and at that time was only 4.8 inches deep on the highway. But at the same time it was way over nearly all the Byrd levee and both banks of the bayou. So, with this undisputed physical fact established beyond a shadow of doubt, what must of necessity have been the situation in the July, 1932, flood, when the water was 12 to 18 inches deep over the same spot on the highway and the Byrd levee 12 to 18 inches lower? The answer necessarily must be that the water must have been over the levee and over the banks of the bayou, eye-witnesses to the contrary notwithstanding. *Page 174
In Magnolia Petroleum Company v. Saunders,193 Ark. 1080, 104 S.W.2d 1062, we held that where "Testimony is at variance with physical facts and such repugnance is material and self-evident, improbable conclusions drawn in favor of a party litigant through the sanction of a jury's verdict will not, on appeal, be looked upon as inviolate, if in conflict with recognized elements of time, mathematics, and the accepted laws of physics," quoting syllabus No. 2. In other words, where human testimony contradicts undisputed physical facts, the latter must control. If the water in January, 1937, rose to an elevation of 232.5 feet it is bound to have overflowed the Byrd levee at a height of 231.29, and no number of witnesses who said it didn't could be believed. Also, when it is established that water at a height of 232.5 flowed over the levee, and over the highway to a depth of 4.8 inches, then it necessarily follows that, when water from the same source overflows the highway to a greater depth, as it did in July, 1932, by the undisputed evidence, it must have been higher at the source in 1932 than in 1937, and no number of witnesses who said it was not can be believed; and for this reason alone, if for no other, the trial court should have directed a verdict for appellant, and this court should reverse and dismiss the judgments in favor of appellees because he did not do so.
But this is not the only reason this cause should be reversed and dismissed. There are a number of others, all related to this cause, however. The elevation, undisputed, of the Turner house, being on a portion of the overflowed land, is 230 feet. The water rose on the Turner house, according to appellee, Coleman, son-in-law of the late Mr. Turner, on Tuesday to from 6 to 12 inches, and on Wednesday it had risen 2 1/2 or 3 feet higher. If the water on this house ever rose to such heights it must have been over the levee and the banks of the bayou. The Hugh Brown pump's elevation is 228.25 according to appellees' witness, Allen. Proof showed the water 5 feet deep. The Griffin Dennis land at its highest point is 233 feet and it all overflowed. Alec Vaughn's land has elevation of 228 and it was covered by 5 feet of water and the same is true as to the Clem Murdock land. The Basler *Page 175 milk house, located about 3 miles north of the Byrd levee, has an elevation of 232.5 and the water was 23 inches deep on the milk house.
But the majority say the witnesses, Lefever for appellant and Allen for appellee, did not have to be believed by the jury, and that their testimony as to elevations is not binding. Well, they agreed without essential difference on elevations and appellee's witness, Allen, agrees that appellant's witness Lefever's elevations are correct. Both parties relied upon them and why should they not be bound by their testimony? Moreover, it occurs to the writer that establishing these elevations above sea level is a pure question of mathematical measurements based on given or accepted data, and that the result would be the same whether the data was given or accepted. The problem must have been correctly solved, else the two engineers would not have agreed and the jury had no right to disregard their testimony. Let it be remembered that each witness made his own survey, independent of the other, and that neither was a mere checking of the correctness of the other, and yet they agreed upon all points of elevation without substantial difference.
For these reasons, I respectfully dissent and am authorized to say that the Chief Justice and Mr. Justice FRANK G. SMITH concur in this dissent.