Brush v. Southern Pacific Co.

WASTE, P. J.

Plaintiff brought this action, alleging that the defendants so negligently constructed, and maintained, a bridge over a waterway, or “wash,” extending from the San Dimas Canyon, in the Sierra Madre Mountains, that during an unusually heavy rainfall, in the months of January and February, 1914, large quantities of trees, rocks, orchard cuttings, railroad ties, planks, and other debris were carried by the water, and accumulated against and between the piling of said bridge, clogging up the waterway, causing the water to dam up for a distance of eight hundred feet back of the bridge, destroying seventy-five orange trees, and injuring five hundred others; also causing gravel to be deposited over about six acres of plaintiff’s land, to a depth of one to three feet. Judgment was entered for the plaintiff for the sum of seven thousand two hundred dollars, after a verdict for that amount by a jury, and the defendants appeal.

In defense of the action the defendants set up that the lands described in plaintiff’s complaint were, as a matter of fact, part of the natural course and bed of the San Dimas wash, which the plaintiff set about to reclaim; that, by reason of the construction of a retaining wall by the plaintiff, along the natural line of the bank of the wash, in said

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work of reclamation, the water was prevented from following its natural course; and, further, that the bridge was of substantial construction, erected in 1884, permanent in its nature, and that any cause of action against the defendants by reason of the faulty erection of the bridge, was barred by the statute of- limitations. Defendants also alleged an unprecedented amount of rainfall as the cause of the excessive flow in the waterway.

The judgment must be reversed.

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After the overflow W. H. Whalen, division superintendent of the Los Angeles division of the defendant Southern Pacific Company, made an examination of the bridge. Over the objection of the defendants, witness Carlson was permitted to testify that upon the occasion of this inspection Whalen stated that the bridge was not properly constructed because of the piling being driven diagonally across the stream. The purpose of the introduction of this testimony was to show that the bridge was an obstruction to the stream. The admission of this testimony was error. The conversation not being part of the