#### Ollie H. Gillette, Appellee, v. The Chicago, Milwaukee & St. Paul Railway Company, Appellant.

Gen. No. 5,999.

(Not to he reported in full.)

Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Farrand, Judge, presiding.

Heard in this court at the October term, 1914.

Affirmed.

Opinion filed March 9, 1915.

Statement of the Case.

Action by Ollie H. Gillette against the Chicago, Milwaukee & St. Paul Railway Company, for damages caused a growing crop of corn which was overflowed as the result of the defendant driving the piles of a bridge so closely together as to obstruct the waters of a stream during heavy rains or freshets. From a judgment in favor of the plaintiff, the defendant appeals.

Ralph E. Eaton, for appellant.

*305Abstract of the Decision.

1. Railroads, § ' 334 * —when injury to crops by overflow proximate result of obstruction of stream. Evidence that a railway company obstructed a stream by driving piles closely together, which in times of heavy rains or freshets caused the water to back up on the plaintiff’s land to the injury of his crops, is sufficient to sustain an inference that the negligence of the railway company was the proximate cause of such injury.

2. Evidence, § 478*—when inference of ultimate facts sufficient to sustain verdict. Where evidentiary facts fairly justify an inference of the ultimate facts to be proved, their probative force is sufficient to sustain a verdict.

3. Railroads, § 348*—evidence as to obstruction backing up waters of stream. A witness may testify in an action for damages to crops caused by a railway company placing piles so closely together in a stream as to cause the water to back up during heavy rains or freshets, as to his observations of the waters at that time.

4. Railroads, § 348*—evidence as to effect on crops of backing up water of stream. In an action against a railway company for damage to crops caused by the waters of a stream backing up, in which the defendant had placed piles closely together, a witness may testify as to the effect of the overflow of the waters on the crops.

5. Railroads, § 348*—evidence of effect of obstruction on waters of stream. A witness may testify, in an action against a railway company for damages to crops caused by the backing up of the waters of a stream in which 'the defendant had driven piles closely together, as to the effect on the waters of trees, brush, weeds and straw lodging between th,e piling.

6. Railroads, § 352*—when instructions sufficient as to liability for obstructing stream. An instruction in an action against a railway company, for damages to crops from the waters of a stream backing up as the result of the defendant placing piles closely together in the stream, as to the liability of the company for overflow of waters during such a heavy rain or freshet as could have been reasonably anticipated, is not bad because of the omission of the words “by an ordinarily prudent person,” where such qualification was fully covered by other portions of the court’s charge.

F. J. Stransky, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. •

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Me. Justice Niehafs

delivered the opinion of the court.

*3067. Instructions, § 159 * —lohen instructions considered as a whole. In determining the sufficiency of a portion of an instruction, the charge must be taken’ and considered together as a whole.

8. Railroads, § 352*—instruction requiring finding to he based on allegation of declaration instead of proof. An instruction in an action against a railway company for damages caused a crop by the backing up of water as the result of the defendant placing piles closely together in a stream, held not to permit the jury to find the negligence of the defendant from the allegations of the declaration, but to require it to be found from the proofs.