Fort Worth & Denver City Railway Co. v. Kiel (143 Tex. 601, 1945)

Mr. Justice. Sharp

delivered the opinion of the Court.

W. H. Keil filed this suit against the Fort Worth & Denver City Railway Company for damage to his swimming pool which was located near a small creek. The tracks of the Railway Company crossed the creek a short distance below the. swimming pool, and they were laid upon an embankment ¿cross the creek, There was a culvert in the embankment where it crossed the creek. It was urged that the embankment backed flood waters against the concrete wall of the swimming pool, which caused the wall of the swimming pool to cave in. The suit for damages to the swimming pool was based on the theory that the culvert was too small to carry off the flood waters. Despite the answers of the jury to special issues, the trial court upon motion of the plaintiff for judgment entered judgment non obstante veredicto for $1,472.50 in favor of plaintiff against the Railway Company, and the Court of Civil Appeals affirmed that judgment". 185 S. W. (2d) 144. :

In answer to special issues the jury found:

(1) That the Railway Company failed to construct the necessary culvert or culverts required for the necessary drainage of the land.

(2) That such failure was the proximate cause of the injury to the swimming pool.

(3) That such failure was not negligence.

(4) That the Railway Company failed to maintain an adequate culvert immediately before said injury; that such failure was negligence; an