Gould, Associate- Justice.
Parker, the owner of mill buildings, with mill, gin, and machinery of various kinds, and of the lot in the city of Tyler on which they were situated, sued the railroad company for damages thereto* and to his business, alleged to have been occasioned by an embankment and insufficient culvert erected across a branch, by reason whereof the water in the branch was obstructed and caused to overflow and damage said lot, mill, and machinery. In the answer defendant alleged that the culvert was constructed in the most skillful and scientific manner, with a capacity to carry off the water of the branch during ordinary freshets; that the premises of plaintiff had never been overflowed except during extraordinary floods of rain ; and that for injury from such floods defendant was not responsible. The answer also states that “ immediately above said culvert and across said branch the authorities of the city of Tyler, or some other persons to defendant unknown, have constructed from bank to hank a solid plank bridge, with an opening under the same, through which the water must pass before it reaches the culvert”; that the opening under said bridge was narrower and of less depth than the opening of the cul[343]*343vert, and. that therefore the bridge, during very heavy rains, eanght drift-wood, obstructing the flow of water thereunder, and throwing it hack towards plaintiff’s premises. The answer charged plaintiff* with various acts of contributory negligence, and also charged that his buildings were in part in the public streets of the city of Tyler, claiming that he was, therefore, himself guilty of a nuisance, and could not, for that reason, recover of defendant.
The evidence showed that previous to May 6, 1876, the water from the branch came into the plaintiff’s mill several times; but on that day there was a very heavy rainfall, and the water of the branch was hacked up by the embankment so that it was five or six feet deep in the mill, doing much damage. There was much evidence as to whether this was an extraordinary rain or not, most of the witnesses so designating it, although there was also evidence by some witnesses of other rains at Tyler as heavy or heavier. On behalf of the plaintiff', witnesses who knew the branch testified that they warned the engineer, when constructing the culvert, that it was insufficient. On the other hand, a scientific engineer who had examined the surface drained by the branch testified that the culvert was constructed “scientifically, properly, and correctly,” and that its capacity to carry off* ordinary rainfalls was ample. There was much evidence as to overflows of the branch before and after the embankment, as to contributory negligence on the part of the plaintiff, and as to drift caught by the bridge. The evidence is that this bridge was constructed when the culvert was made by the railroad hands, under the supervision of its engineer, for the convenience of the public and the railroad; the testimony of one witness being that it forms no part of the railroad, but is in the public street of the city, and, as he believed, belonged to the city.
The charge of the court was very full. In the outset the jury are told that the material issues for their consideration arose under the general denial and the defense of contribu[344]*344tory negligence. After some general instructions, to the effect that plaintiff must prove that the damage was the proximate result of overflows caused by the embankment and defective culvert, and explaining that this means such result “as men of ordinary experience and sagacity could foresee would have happened in the natural order of things, under the peculiar surrounding circumstances,” the court says: “The grant of power to the defendants to construct their railroad included the right to make such embankments as were proper for its prudent construction. It was the duty of the defendants to provide sufficient culverts through said embankment for the proper escape, so as to prevent any unnecessary injury to the adjacent land-owners, of such waters as would be occasioned by the ordinary rainfalls and freshets incident to the particular section of country in which they are constructed. They, however, were bound to provide against such damages only as could have reasonably been foreseen, and would not have been guilty of such culpable negligence as to make them responsible in damages if they failed to provide against such extraordinary floods and other accidental casualties as could not have been reasonably anticipated by men of the ordinary engineering skill and sagacity required in the prudent construction of such railroads generally.” ' The defendant asked instructions to the effect that the railroad was not required to construct culverts of sufficient capacity to carry off extraordinary floods of water after an extraordinary rainfall.
Evidently the principal question in the case was that of negligence in the construction of the culvert. It was for the court to instruct the jury as to the law of negligence applicable to the case; that is, .applicable to a case of injury to the property of an adjacent land-owner growing out of the manner in which the railroad was constructed. The charge as given embodies the correct rule, holding the railroad to the exercise of ordinary care, which would evidently require it to provide against ordinary rains, but not against such ex-[345]*345traorclinary floods as could not reasonably be anticipated. (Shear. & Red. on Neg., sec. 445; Blyth v. Birmingham, 11 Ex., (II. & G.,) 781.) Ordinary care is such care as is usually exercised under like circumstances by men of ordinary prudence in their own affairs. It is but an attempt at a further explanation of this rule to say that it requires those floods to be guarded against which would by such men be foreseen and provided for. If the court had given the.charges asked it would have violated the rule laid down by this court in T. and P. R. R. Co. v. Murphy, 46 Tex., 356, that negligence, in the absence of a law—or, perhaps, it might be added, of a settled rule of law—defining the acts which constitute it, is a fact to be found by the jury. It is true that counsel cite one case in which the court seem to recognize it as a rule of law that in the construction of culverts railroads are not bound to provide against extraordinary floods. (Pittsburg, Fort Wayne and Chicago Railroad Co. v. Gilleland, 56 Penn., 445.) It appears from another case in the same volume that the courts of Pennsylvania have adopted a different rule from that just stated as adopted by this court, and incline to make negligence a question of law instead of a question of fact. (Pittsburg and Connellsville Railroad Co. v. McClurg, 56 Penn., 294.) Evidently, hovrever, in the case cited by counsel, the court intends by extraordinary floods those which are so unusual that they could not be “expected”; for they say: “ Being extraordinary, neither second nor third could be expected more than the first.” Thus understood, that case agrees with the charge as given. But, without some further qualification, the expression “extraordinary flood” or “extraordinary rainfall” is indefinite, and conveys a meaning varying with the connection in which it is used. What would be an extraordinary flood in one latitude might not be so in another. Are floods extraordinary because they may not be expected annually ? If" not, how infrequent must be the recurrence to make them extraordinary? If once in two or three or five years such floods may be expect-[346]
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Gould, Associate- Justice.
Parker, the owner of mill buildings, with mill, gin, and machinery of various kinds, and of the lot in the city of Tyler on which they were situated, sued the railroad company for damages thereto* and to his business, alleged to have been occasioned by an embankment and insufficient culvert erected across a branch, by reason whereof the water in the branch was obstructed and caused to overflow and damage said lot, mill, and machinery. In the answer defendant alleged that the culvert was constructed in the most skillful and scientific manner, with a capacity to carry off the water of the branch during ordinary freshets; that the premises of plaintiff had never been overflowed except during extraordinary floods of rain ; and that for injury from such floods defendant was not responsible. The answer also states that “ immediately above said culvert and across said branch the authorities of the city of Tyler, or some other persons to defendant unknown, have constructed from bank to hank a solid plank bridge, with an opening under the same, through which the water must pass before it reaches the culvert”; that the opening under said bridge was narrower and of less depth than the opening of the cul[343]*343vert, and. that therefore the bridge, during very heavy rains, eanght drift-wood, obstructing the flow of water thereunder, and throwing it hack towards plaintiff’s premises. The answer charged plaintiff* with various acts of contributory negligence, and also charged that his buildings were in part in the public streets of the city of Tyler, claiming that he was, therefore, himself guilty of a nuisance, and could not, for that reason, recover of defendant.
The evidence showed that previous to May 6, 1876, the water from the branch came into the plaintiff’s mill several times; but on that day there was a very heavy rainfall, and the water of the branch was hacked up by the embankment so that it was five or six feet deep in the mill, doing much damage. There was much evidence as to whether this was an extraordinary rain or not, most of the witnesses so designating it, although there was also evidence by some witnesses of other rains at Tyler as heavy or heavier. On behalf of the plaintiff', witnesses who knew the branch testified that they warned the engineer, when constructing the culvert, that it was insufficient. On the other hand, a scientific engineer who had examined the surface drained by the branch testified that the culvert was constructed “scientifically, properly, and correctly,” and that its capacity to carry off* ordinary rainfalls was ample. There was much evidence as to overflows of the branch before and after the embankment, as to contributory negligence on the part of the plaintiff, and as to drift caught by the bridge. The evidence is that this bridge was constructed when the culvert was made by the railroad hands, under the supervision of its engineer, for the convenience of the public and the railroad; the testimony of one witness being that it forms no part of the railroad, but is in the public street of the city, and, as he believed, belonged to the city.
The charge of the court was very full. In the outset the jury are told that the material issues for their consideration arose under the general denial and the defense of contribu[344]*344tory negligence. After some general instructions, to the effect that plaintiff must prove that the damage was the proximate result of overflows caused by the embankment and defective culvert, and explaining that this means such result “as men of ordinary experience and sagacity could foresee would have happened in the natural order of things, under the peculiar surrounding circumstances,” the court says: “The grant of power to the defendants to construct their railroad included the right to make such embankments as were proper for its prudent construction. It was the duty of the defendants to provide sufficient culverts through said embankment for the proper escape, so as to prevent any unnecessary injury to the adjacent land-owners, of such waters as would be occasioned by the ordinary rainfalls and freshets incident to the particular section of country in which they are constructed. They, however, were bound to provide against such damages only as could have reasonably been foreseen, and would not have been guilty of such culpable negligence as to make them responsible in damages if they failed to provide against such extraordinary floods and other accidental casualties as could not have been reasonably anticipated by men of the ordinary engineering skill and sagacity required in the prudent construction of such railroads generally.” ' The defendant asked instructions to the effect that the railroad was not required to construct culverts of sufficient capacity to carry off extraordinary floods of water after an extraordinary rainfall.
Evidently the principal question in the case was that of negligence in the construction of the culvert. It was for the court to instruct the jury as to the law of negligence applicable to the case; that is, .applicable to a case of injury to the property of an adjacent land-owner growing out of the manner in which the railroad was constructed. The charge as given embodies the correct rule, holding the railroad to the exercise of ordinary care, which would evidently require it to provide against ordinary rains, but not against such ex-[345]*345traorclinary floods as could not reasonably be anticipated. (Shear. & Red. on Neg., sec. 445; Blyth v. Birmingham, 11 Ex., (II. & G.,) 781.) Ordinary care is such care as is usually exercised under like circumstances by men of ordinary prudence in their own affairs. It is but an attempt at a further explanation of this rule to say that it requires those floods to be guarded against which would by such men be foreseen and provided for. If the court had given the.charges asked it would have violated the rule laid down by this court in T. and P. R. R. Co. v. Murphy, 46 Tex., 356, that negligence, in the absence of a law—or, perhaps, it might be added, of a settled rule of law—defining the acts which constitute it, is a fact to be found by the jury. It is true that counsel cite one case in which the court seem to recognize it as a rule of law that in the construction of culverts railroads are not bound to provide against extraordinary floods. (Pittsburg, Fort Wayne and Chicago Railroad Co. v. Gilleland, 56 Penn., 445.) It appears from another case in the same volume that the courts of Pennsylvania have adopted a different rule from that just stated as adopted by this court, and incline to make negligence a question of law instead of a question of fact. (Pittsburg and Connellsville Railroad Co. v. McClurg, 56 Penn., 294.) Evidently, hovrever, in the case cited by counsel, the court intends by extraordinary floods those which are so unusual that they could not be “expected”; for they say: “ Being extraordinary, neither second nor third could be expected more than the first.” Thus understood, that case agrees with the charge as given. But, without some further qualification, the expression “extraordinary flood” or “extraordinary rainfall” is indefinite, and conveys a meaning varying with the connection in which it is used. What would be an extraordinary flood in one latitude might not be so in another. Are floods extraordinary because they may not be expected annually ? If" not, how infrequent must be the recurrence to make them extraordinary? If once in two or three or five years such floods may be expect-[346]*346eel, are they so extraordinary that no provision would be made against them by men of ordinary prudence, no matter how large the amount of property endangered, or how certain its destruction when such floods do come ? In the vicinity of a city, or elsewhere where a large amount of property is liable to be destroyed, are not railroads and individuals, in common prudence, called on to use precautions “ in proportion to the extent of the inj nry which will be liable to result,” and to provide against floods, although they do not ordinarily recur annually? (107 Mass., 492.) These are questions of fact for the jury, not of lawr for the court. For this reason, and for the further reason of its indeflniteness as a legal proposition, the court did not err in refusing the instruction asked. We think that this, the main issue in the case, was fairly submitted to the jury.
It is claimed that the court erred in telling the jury that the material issues for their consideration arose under the general denial and the defense of contributory negligence, thereby, it is said, withdrawing from the jury, amongst other issues raised by the pleas of defendant, the issue that the overflow was caused by a bridge constructed by the city of Tyler or by some one else. This defense was, we think, available under and embraced in the general denial. It did not confess and avoid the matters charged in the petition, but-amounted to a denial that the overflow was caused by an insufficient culvert. The court charged that the plaintiff must prove that the “ damage was occasioned, as the natural proximate legal result of overflows caused by the embankment and alleged defective culvert of defendants through the same, by reason of having been improperly constructed.” If the jury believed that this overflow was caused by a bridge constructed by the city of Tyler or by some third person, they would, under this charge, find for defendant. The court did not err in that part of the charge, because the defense did arise under the general denial. But, whether it did or not, it devolved on the defendant to ask of the court such instruc[347]*347lions as could properly direct the attention of the jury to this issue. The instruction asked by him on this subject is as follows : “ That to entitle plaintiff to recover in this action, the proof must show that his damage, if any has been sustained by him, was occasioned by an unlawful obstruction of the water of the branch by the embankment constructed by defendant for its road-bed; and if the proof shows that the obstruction is caused by a bridge on a public street of the city of Tyler, occasioned by the collection of drift-wood by said bridge, the defendant is not liable for such obstruction, unless the proof shows that said road bridge is owned or controlled by defendant for the purpose of operating its road-bed under its charter; and defendant is not, unless it so owns and controls said bridge, liable for any obstruction occasioned by said road bridge, notwithstanding the said bridge may have been constructed by the hands who constructed the railroad, and notwithstanding said bridge may have been paid for or constructed by or under the direction of Col. Noble, an engineer of the railroad.” The substance of this charge is that the railroad was not responsible on account of the bridge unless they owned and controlled it. As a legal proposition this is not correct. A person erecting a nuisance in a public street is liable civilly for all the consequences. (Wood on Nuisances, secs. 268, 269, 271.) Again, “The fact that the injury was caused by the joint negligence of the defendant and a stranger is, of course, no defense.” (Shear. & Red. on Neg., sec. 46, citing Harrison v. Great Northern Railroad Co., 3 Hurlst. & C., 231.) If the bridge was erected by the railroad as a part of its culvert, although placed in a public street, so that it would become the property of the city, the railroad would not thereby be relieved from responsibility therefor. The court committed no error of law in refusing the instruction asked, nor do we see any reason to believe that the defendant suffered any substantial injury by the failure of the court to call the attention of the jury to the issue as to the bridge. The evidence shows that it was constructed by [348]*348the railroad, connected immediately with the culvert, and might well be regarded as a prolongation thereof; and, further, that its opening is larger than that of the culvert proper, and its capacity to discharge water consequently greater, and the evidence fails to show that it increased the danger of the culvert becoming obstructed by catching drift-wood.
In regard to the defense that the' plaintiff’s mill was itself a nuisance, being in part on the street, we will only say that if, by reason of inaccurate measurement in laying off the city or subsequently, he was misled and placed his buildings so that they encroached five or six feet on the street,—or, rather, on the ground where by accurate admeasurement the street would have been,—such a mistake, if mistake it be, would not, of itself, deprive him of remedy in case of injury to his property, unless, as charged by the court, the plaintiff" contributed to the injury “by placing his building on the public street.”
The court charged the jury fully and correctly on the subject of contributory negligence, and did not err in refusing further charges on that subject asked by defendant.
The plaintiff sought damages for injuries done to his lot and buildings, for injuries to a large amount of machinery and other personal property, and for injuries to his business, by interruption thereof, caused by the overflow. The court instructed the jury as to the measure of damages under each of these heads, and, in obedience to instructions to that effect-, they returned their verdict showing their finding on each ground, as follows: “We, the jury, find for the plaintiff as damages to his real property the sum of .($1,298) twelve hundred and ninety-eight dollars. We, the jury, find for the plaintiff as damages to his personal property the sum of ($1,587.50) one thousand five hundred and eighty-seven dollars and fifty cents. We, the jury, find for the plaintiff" as damages to his business the sum of ($414.95) four hundred and fourteen dollars and ninety-five cents. H. C. Harris, [349]*349Foreman. Total damages, $3,300.45.—17. 0. Harris, Foreman.”
Appellant treats this verdict as a finding on special issues, and objects that it is not a general verdict for the plaintiff, and that it does not declare the facts found by the jury under the special issues. We regard the verdict as a general verdict in favor of plaintiff, showing the amounts found under each head or distinct ground, and authorizing a judgment in favor of plaintiff for the aggregate sum. A corresponding practice in cases where exemplary as well as compensatory damages are claimed is quite common, and has not only not been deemed to vitiate the verdict, but has been commended for adoption.
We have not undertaken to discuss each assignment of error separately; but it is believed that we have disposed of the material questions raised thereby and discussed by counsel. As said by counsel, the fundamental question in the case was that of negligence. That was essentially a question of fact for the jury, and has been decided by them under a fair charge. The trial below appears to have been conducted with great deliberation and care, consuming over two weeks. Every possible defense appears to have been presented by counsel, and to have been urged, both there and here. The evidence is sufficient to support the verdict as to the general issue of negligence, and also as to the amount of damages found. Our opinion is that the record discloses no error authorizing us to reverse the judgment, and it is accordingly affirmed.
Affirmed.
[ Justice Bonner did not sit in this case.]