thus was his property destroyed, and personal injury received by himself. The evidence tends to show, that, prior to the construction of the railway, water frequently came over the land, but that it would flow into the back country, and not become deep; but that upon this occasion its flow was impeded by the railway embankment to such extent that between the railway and the shore the water became four or five feet deep, while there was but little water on the west side of the railway. The great weight of testimony tends to show that such winds and overflows had frequently occurred before the railway was built, but without injury to property; and there is some testimony tending to show that the company's engineer was informed that the embankment, if constructed solidly at such height, would bring about such results as ensued. The evidence renders it reasonably certain that the destruction of the house in which plaintiff's property was, as well as its loss and his injury, resulted from the accumulation and deepening of the water caused by the railway embankment, and that but for it the loss would not have occurred.

to defendant's liability held proper.

The court instructed the jury that it was the duty of the railway company, in the construction of its road-bed, "to use that degree of care and prudence in constructing its Instructions as road-bed so as to provide against damages to such adjacent property as a prudent, cautious, and careful man would do to protect himself against damages to his own property.' This charge was as favorable as the appellant could ask. The court, however, instructed the jury that if the appellant "constructed its road-bed or grade in such way and in such manner as to guard against ordinary freshets, overflows, tides, etc., so as to prevent damage therefrom to adjacent property, it would not be liable for damages arising from an extraordinary or unusual rise or overflow of water, such as could not have been foreseen or anticipated by the use of the greatest care, skill, and caution in the construction of its roadbed." It is urged that the giving of this charge was error. The charge certainly stated a correct rule; and, if the appellant was of the opinion that the exercise of a less degree of care would have relieved it from liability, a charge upon that subject should have been asked. If the charge had informed the jury that nothing less than the exercise of the highest skill, care, and caution would relieve the appellant from liability for an injury resulting from an extraordinary or unusual rise or overflow, a different question would arise. There is no reason to believe that the jury were misled, if they considered the entire charge.

It is claimed that the verdict of the jury was contrary to, and

ported by
evidence.

not supported by, the evidence, in that it is claimed that the evidence clearly showed that the injury resulted from an extraordinary, sudden, and violent storm, which could Verdict sup not have been anticipated. The evidence is not of this character; to the contrary, it tends most strongly to show that such storms had frequently occurred before, and that, but for the want of proper care in the construction of the appellant's railway, injury, most probably, would not have resulted from such a storm.

New trial.

Newly discov

There was an application for a new trial, based on testimony alleged to be newly discovered, which was overruled, and this is assigned as error. This evidence, as stated in the affidavit of the witness, was, "that he had lived at Sabine Pass from 1860 until 1869. . . . That in 1865, ered evidence. before the Sabine & East Texas road was built, there was a storm, when the water and wind together carried away houses located on the front of Sabine Pass, between the water of the pass and where the road-bed of defendant is now located. That he is acquainted with the situation and bearing of the pass, and that a wind blowing from the south-east would blow directly up the pass, and that houses on the front of the pass would be in a very exposed situation; and that the force of the wind and waves would not be affected when the wind is blowing from the south-east, by the railroad embankment of defendant. That he left Sabine Pass in 1869, and his residence on the front of the pass, on account of the exposed condition of said front." We do not see what advantage this evidence could have been to the defendant. In so far as admissible, it was cumulative; and the court would have been well justified in coming to the conclusion that such facts as the witness proposed to testify to were known, if true, by the residents of the town generally, and that the exercise of a slight degree of diligence would have obtained evidence of such facts. It is not shown what diligence was used to obtain the testimony of the witness.

There is no error in the judgment, and it will be affirmed. 34 A. & E. R. Cas.-13.

OHIO & MISSISSIPPI R. Co.

ข.

WACHTER.

(Illinois Supreme Court, Jan. 20, 1888.)

Construction of Road - Embankment Culverts. Where a railroad company constructs an embankment as part of its road-bed, it is bound to construct sufficient and substantial culverts so as to allow the escape of accumulating waters through them in times of high water as well as low.

Same Sufficient Culverts - Damages. A railroad company, by the payment of the compensation provided for, for injuries caused by the construction of its road-bed, does not escape liability to an owner of adjoining lands for damages caused by the improper and defective construction of the road-bed; e.g., by the construction of an insufficient culvert.

APPEAL from Appellate Court for the fourth district.

Action by Michael Wachter against Ohio & Mississippi Railway Company to recover damages for plaintiff. The cause is brought here by defendant on certificate from the Appellate Court.

Pollard & Werner for appellant.

W. C. Kueffner for appellee.

MULKEY, J. — This is an appeal from the Appellate Court for the fourth district, affirming a judgment of the Circuit Court of St. Clair County in favor of Michael Wachter, the Facts. appellee, against the Ohio & Mississippi Railway Company, the appellant herein, for the sum of $600 and costs. The form of the action was trespass on the case. The first count charges "that the plaintiff, at the time of the alleged grievances, was the owner and in possession of a certain brick-yard, with certain property situate thereon, in the town of O'Fallon, in St. Clair County, near which defendant's railroad was operated, and which crossed a natural water-course; that defendant had constructed, and did unlawfully maintain, a certain solid earth embankment across said water-course, about twenty feet in height, which obstructed the natural flow of the water, and forced it back upon adjoining lands; that defendant had constructed, and was maintaining, a culvert through the embankment, which was utterly insufficient to permit the free passage of water, which in

SURFACE WATERS. - For a full discussion of the question of surface water, see ante, Phila delphia, W. & B. R. Co. v. Davis, 143, and note 148-151.

ordinary floods and freshets would naturally flow in said watercourse, and seek passage through the said culvert; that on or about June 20, 1885, a heavy rain-storm set in, and a large quantity of rain-water naturally fell upon the lands adjoining said water-course, and said water naturally was drained and ran into said water-course, and would have escaped and run off without damage to the plaintiff but for said embankment; but that said water was stopped by said embankment, and owing to the insufficiency and inadequacy of said culvert, and opening in said culvert, was prevented from passing off in its natural course, and forced back upon and flooded his brick-yard, and property thereon, to his great damage." The second count is substantially the same as the first, except that the negligence imputed to the defendant is its suffering the culvert to become choked up with obstructions, causing the water to back up and overflow the plaintiff's property. The third count charges that.the defendant wrongfully and unlawfully constructed and maintained the levee without leaving a sufficient opening for the water to pass through the embankment. In other respects it was like the first and second. The defendant interposed the plea of not guilty, and upon this issue alone the cause was tried before the court and a jury, with the result already stated.

No exception was taken on the trial to any ruling of the court upon the admissibility or exclusion of evidence; and while we find exceptions were taken to the court's rulings upon the instructions, and that such rulings were assigned in the Appellate Court for error, we may assume this was done merely pro forma, for no objection to the instructions is urged in appellant's argument, or even so much as suggested. Not perceiving any objections ourselves to the instructions of which the appellant can complain, no discussion of them is called for, or could well be made.

Court.

Upon an examination of the record in the Appellate Court, we find there was a simple affirmance of the judgment of the trial court, without any finding of the facts by that court. In its opinion, however, there were ques- Appeal from tions or, rather, a question-involved in the case of Appellate sufficient importance to certify the cause to this court, Certificate. which it has accordingly done. As just indicated, that court has appended to its certificate the specific grounds upon which the appeal was granted. That, however, we regard as merely advisory, for the reason the statute did not require it. Yet in many cases, if not in this, such a statement, though not required as a matter of duty, might subserve a good purpose by directing the attention of this court to the particular features of the case which, in the opinion of that court, were not regarded

as free from question. Nevertheless, whenever a case is brought from the Appellate Court to this upon a certificate, it is here as if brought in the usual way, for all purposes. In either case this court is required to consider such questions, and such only, as arose upon the record, and which it is by law authorized to determine. To ascertain what questions do thus arise, we look to the pleadings, the rulings of the court, and the orders in the cause, and not to the certificate of the Appellate Court allowing the appeal. Viewing the present record in this light, it is not clearly perceived that any thing remains for this court to do but simply to affirm the judgment, unless it were able to say, as matter of law, that the declaration discloses no cause of action; this being always a question open to consideration in a court of review when it falls within any of the assignments of errors. While there is no direct claim of this kind made, yet the question that appellant now asks us to consider, and which is the only one discussed in the brief filed by its counsel, seems to assert as much. Upon this view, therefore, it may not be improper to con

sider it.

Injury caused

by insufficient culvert. Per

manency of injury.

The question or proposition as formulated by counsel is, "The injury caused by the construction of an insufficient culvert in a railroad embankment is immediate and permanent, giving rise to but one cause of action." Counsel have cited in support of the proposition the following authorities: Gas Co. v. Graham, 28 Ill. 73-78; Railroad Co. v. Grabill, 50 Ill. 241; Railway Co. v. Morgan, 72 Ill. 155; Railroad Co. v. Stein, 75 Ill. 42; Railroad Co. v. Maher, 91 Ill. 312; Gas Co. v. Howell, 92 Ill. 19; Railroad Co. v. Loeb, 118 Ill. 203; s. c., 27 Am. & Eng. R. R. Cas. 415; Railway Co. v. McDougall, 118 Ill. 229; 8 N. E. Rep. 678; Railroad Co. v. McAuley, 121 Ill. 160,- none of which, in our judgment, sustains it. The statement is not accurate as an abstract proposition; and, even if it were, it is not but in part applicable to facts of the case, and is inconsistent with the theory upon which it was tried by both parties. Considered as a general proposition, it should at least be limited to the case of a railroad built under authority of law, and in a reasonably proper and skilful manner, so as to avoid the infliction of all loss and injury not necessarily resulting from thus building and operating the road. The proposition as formulated assumes that a railroad company has the right to construct and operate its road just as it pleases, without regard to whether the method adopted is sanctioned by good railroading or not; that it may build indifferent culverts, or none at all, over drains and streams on the line of its road, and, by thus disregarding the ordinary rules observed in such cases, inundate and overflow, in time of freshets, large bodies