#### KITCHEN LUMBER COMPANY v. TALLASSEE POWER COMPANY (now) CAROLINA ALUMINUM COMPANY.

(Filed 2 May, 1934.)

1. Trial 3) a — On motion of nonsuit all the evidence is to he considered in the light most favorable to plaintiff.

On a motion as of nonsuit all the evidence is to be considered in the light most favorable to plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom, and the motion will be overruled if there is any sufficient evidence favorable to plaintiff on the whole record to warrant a recovery. C. S., 567.

3. Waters and Water Courses C d — Evidence that defendant suddenly increased the flow of surface water to plaintiff’s damage held sufficient.

Plaintiff maintained a bridge across a stream over which it hauled lumber on its tram road. Defendant maintained a power dam farther up the stream. In plaintiff’s action to recover for the destruction of the bridge it introduced evidence that earlier in the morning the bridge was destroyed walking horses forded the stream, that later in the morning several witnesses heard a roaring along the stream and saw a large head of water coming down the stream, and that at the bridge the water rose rapidly and in a few minutes ran over the bridge, which was built a little above high water mark, carrying slabs, brush, etc., against the bridge and washing it out, and that there had been no ■ rain since the evening of the day preceding. Held, the evidence was sufficient to be *516submitted to the jury on the question of whether defendant suddenly increased the flow of surface water in the stream to plaintiff’s damage, although defendant introduced testimony of its gate keeper at the dam that the gates at the dam had been gradually raised as made necessary by the rising waters in the defendant’s lake, the fact in issue being subject to proof by circumstantial evidence.

3. Waters and Water Courses C e — Question, of contributory negligence in causing damage from increase of surface water held for jury.

The evidence in this case that defendant’s bridge had been built a little above high water mark, and that defendant had left no more logs and slabs along the stream bed than was customary in lumbering operations is held sufficient to justify the submission of the question of contributory negligence to the jury in plaintiff’s action to recover for the destruction of its bridge which was washed out when a greatly increased flow of water along the stream piled up such debris against the bridge, overflowed it, and washed it out, and defendant’s motion for judgment as of nonsuit on the ground of contributory negligence was properly refused.

4. Appeal and Error E b—

Where the charge of the lower court is not in the record it is presumed that the court correctly charged the law applicable to the facts.

5. Damages D b — Held: court erroneously excluded defendant’s evidence on issue of damages and a now trial is awarded on the issue.

On the issue of damages resulting to plaintiff from the temporary loss of its bridge as a result of defendant’s wrongful destruction of the bridge, plaintiff introduced evidence that the bridge afforded the only means by which plaintiff could haul its lumber from the land and introduced testimony of the amount of lumber usually hauled per day, the number of days necessary to reconstruct the bridge, its profit per thousand feet, and that it could not get all the lumber out within the time limits set in its contracts. The court excluded evidence offered by defendant in rebuttal that after plaintiff reconstructed the bridge, it stopped cutting timber several months prior to taking up its tram road, and that plaintiff, therefore, had opportunity to haul all its lumber. Held, the exclusion of the evidence constituted prejudicial error, and defendant is given a new trial upon the issues involving the damage sustained by reason of the temporary loss of the means for transporting the lumber.

Appeal by defendant from Alley, J., and a jury, at October-November Term, 1933, of Swain. No error on 1st and 2d issues. New trial on 3d issue.

This was an action brought by plaintiff against defendants, to recover damages: (1) For washing a bridge away. (2) For loss of timber that could not be marketed on account of the bridge being washed away. The defendant set up the plea of contributory negligence. The issues presented to the jury and their answer thereto was as follows: “(1) Was the plaintiff’s bridge destroyed by the negligence of the defendant, as alleged in the complaint? Answer: Yes. (2) Did the plaintiff, by its own negligence, contribute to the destruction of said bridge, as alleged *517in the answer? Answer: No. (3) Was plaintiff delayed by reason of the destruction of said bridge in the completion of its timber boundary on Deep Creek and Laurel Branch, as alleged in the complaint? Answer: Yes. (4) What damages, if any, is the plaintiff entitled to recover? (a) For the cost and expense of replacing the bridge in question? Answer: $1,800. (b) For profits lost by reason of the delay caused by the destruction of the bridge? Answer: $6,200.”

The court below rendered judgment on the verdict. The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

T. M. Jenkins, Edwards & Leatherwood and Moody & Moody for plaintiff.

S. W. Black, R. L. Phillips and R. L. Smith & Son for defendant.

ClaeicsoN, J.

At the close of plaintiff’s evidence and at the close of all the evidence, defendant made motions for judgment as in case of nonsuit, C. S., 567. The court below overruled these motions and in this we can see no error.

Is is too well settled in this jurisdiction to cite authorities that on motion to dismiss or judgment as in ease of nonsuit, the evidence is to be taken in the light most favorable to plaintiff and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. An exception to a motion to dismiss or judgment as in case of nonsuit at the close of plaintiff’s evidence and renewed by defendant after the introduction of his own evidence, does not confine the appeal to the plaintiff’s evidence alone and a judgment will be sustained for plaintiff if there is any sufficient, competent evidence on the whole record to warrant plaintiff’s recovery. The evidence favorable alone to plaintiff is considered. The competency, admissibility and sufficiency of evidence is for the court to determine, the weight, effect and credibility is for the jury.

The allegations in plaintiff’s complaint, in part, are as follows: “That on the morning of 3 September, 1928, defendant negligently used and operated its said dam and water gates thereon in such a reckless and imprudent manner and caused and allowed a large, excessive, dangerous and destructive volume of water to be suddenly released and discharged from its said dam with such an excessive and terrific waterhead and current below the dam, filling the channel and covering the territory there below, carrying logs, timber and debris and waste with excessive volume and velocity and force which struck the plaintiff’s aforesaid railroad bridge, destroying and washing the same away.”

*518Tbe defendant denied tbis allegation and set up contributory negligence in that: (1) It erected tbe railroad bridge across tbe Cbeoab River, two or three feet or more below tbe liigb water mark. (2) Plaintiff cut logs on tbe Cbeoab River above said bridge and tore down trees and allowed tbe trees, logs and laps to be in or near tbe river and at flood or bigb tide, were carried down tbe river and lodged against tbe bridge and tbe force of tbe stream against tbe debris caused tbe bridge to give way and wasb out.

Tbe principle of law involved in tbis controversy is tbus stated in Coulson & Forbes on Waters and Land Drainage, 5tb Ed., pp. 143 and 144: “Tbe general principle regulating tbe liabilities of landowners, with, regard to tbe escape and overflow of water, seems to be as follows: Where tbe owner of tbe land, without wilfulness or negligence, uses bis land in tbe ordinary manner of its use, though mischief thereby accrues to bis neighbor, be will not be liable for damages; but where for bis own convenience, be diverts or interferes with tbe course of a stream, or where be brings upon bis land, water which would not naturally have come upon it, even though in so doing, be acts without wilfulncss or negligence, be will be liable for all direct and proximate damages, unless be can show that tbe escape of tbe water was caused by an agent beyond bis control, or by a storm, which amounts to vis major, or tbe act of God, in tbe sense that it is practically, if not physically, impossible to resist it.” Kelly v. Lett, 35 N. C., 50; Comrs. v. Jennings, 181 N. C., 393 (399); Jackson v. Kearns, 185 N. C., 417; Winchester v. Byers, 196 N. C., 383.

Tbe jury answered tbe 1st and 2d issues in favor of plaintiff and assessed tbe damage at $1,800. The defendant contends that there was no sufficient competent evidence to support tbe finding of tbe jury on tbe 1st issue. We cannot so bold. Tbe evidence on tbe part of plaintiff was to tbe effect that tbe defendant constructed a large concrete dam about 214 feet in height across tbe Cbeoab River in Graham County, North Carolina, known as tbe “Santeetlah Dam.” It closed said dam and obstructed and impounded tbe waters of tbe said Cbeoab River and its tributaries and above, creating a lake or reservoir of water of great volume and magnitude which has a shore line of about 110 miles and covers an area of about 3,000 acres of land. In tbe construction of its said dam, tbe defendant undertook to install or place as a part thereof what it terms as water or flood gates, which gates are movable and can be raised or lowered, obstructing or releasing tbe waters from tbe said lake by such action.

There are eight gates on tbe “Santeetlah Dam,” they are 12 feet bigb and 24 or 25 feet wide. These gates are raised or lowered by band power, with a worm gear. It requires about 5 minutes to raise *519one of the gates 12 inches. About 7% miles below the dam on the Cheoah River, the plaintiff built a bridge about 12 or 14 feet above the ordinary tide in the river and ran trains over it to get lumber from its holdings. The river, at this bridge, is about 150 feet wide. The bridge was 156 feet long and was built 3% to 7 feet above the high water mark and cost from $2,500 to $3,000. The following are some of the witnesses who testified, in part, for plaintiff. J. C. Crisp: “We went to the yard a short distance below Tapoco, and picked up the train and drove up to Barkers Creek bridge,¡and we got there between 7 and 8 o’clock. . . .We drove up to tire bridge and set the train out on the main line. When we got to the bridge, we could see the water coming up rapidly, and in a few minutes the bridge went out. It broke from the opposite side of the river from where we were, and almost sprung the steel out from under the engine. When we got to the bridge, the water was around the stringers. It was about 2% or 3 feet from the' bottom of the stringers to the top of the bridge. The water rose from 2 to 3 feet in from 5 to 10 minutes, in my opinion: I could see it rising; we had been there only from 5 to- 15 minutes before the water was running over the bridge and washed it out. There is no other lake or dam on any of the streams above that bridge other than the Santeetlah Dam. ... It was not raining that morning. The streams above the dam were up some on Sunday evening, just an ordinary tide. It quit raining Sunday evening about 6 o’clock; if it rained any more during the night, I was asleep and didn’t hear it. . . . There was one empty gondola on the bridge, near the east side. We pulled it off and it was right soon after we pulled off the car that the bridge went out. . . . The drift collected on the east side, it consisted of brush and such timber as will collect along any stream, where there is logging operation. ... It was ready for operation in two weeks. When I came back, we worked continually loading logs, and shipped out 6 to 8 cars a day. A car would average 6,000 to 8,000 feet; our daily shipment was from 40,000 to 50,000 feet.”

W. C. Farley: “We were there not over 20 minutes before the bridge went out. The water rose right now, it rose awful fast, it rose rapidly.”

Luther Hamilton: “While we were there, the water went from the bottom of the stringers over the top of the stringers, in about 10 or 15 minutes. . . . After we got there it wasn’t very long before the tide came along. We could tell by the drifts and the trestle timber and stringers and cross-ties. It was traveling at a pretty good speed.”

Lee Herren: “I crossed the Cheoah River between the dam and the bridge, on Monday morning about 5 or 5:30 o’clock. I forded on horses — some forded and some went across in a boat — I rode one horse *520and led another, each teamster did. That was about 5 :30 on the Monday morning they said the bridge washed out. . . .We crossed about four or five miles below the dam. . . . The horses waded the river that morning, didn’t swim.”

Clarence Adams: “I know where the Santeetlah Dam is, and I also know the bridge of Kitchen Lumber Company across the Cheoah River below the dam. . . . On the first Monday in September, 1928, I observed a sudden rise in Cheoah River, I was something like 50 yards from the river. I first heard a noise, just a roaring. I and a man by the name of Stewart were working together, and one of us said something about the noise, I turned and looked up the river and saw coming-down the shoal a head of water, it looked like a splash let loose, it all came together. It looked to me like when I saw it, it must have been three or four feet high, higher than the water just below it. It looked like it came rolling.”

Will Stewart: “On the first Monday in September, 1928, I was working with Clarence Adams at the mouth of Yellow Creek, about 50 yards from the river. We heard a noise of the water coming down the Cheoah River, just a roaring noise; just a head of water coming-rolling. It was coming pretty good speed. I don’t know anything about the Kitchen bridge, I think it was about 4 miles below where we were working. . . .We saw that tide about 1:30, it was about 2 or 2% feet high.”

Loss Holland: “I heard a roaring in the Cheoah River that morning and looked and saw something like a splash of water coming down the river.”

J. B. Buchanan: “There was no other practical way of getting this timber out of Barkers Creek and Bear Creek, except over the railroad. We were moving about 50,000 feet per day over the railroad trestle at the mouth of Barkers Creek when it washed out. ... We began getting the timber for rebuilding the bridge the same day on Bear Creek and hauled it up to the bridge with the train. On Wednesday evening, a week after the trestle washed out, I let the supply train over there one night late, and the best I remember, we didn’t put any logs over until Monday, two weeks after the bridge washed out. The best I can remember, during that time the weather was fine. We could have transported 50,000 feet per day over the bridge during these two weeks if the bridge had been there. . . . This bridge was washed out on 3 September, 1928, and we kept cutting and logging in that territory until 15 November, 1929.”

E. S. Miller: “It cost us $2,153.44 to replace the bridge that washed out: I think that was a reasonable cost. . . .We lost about 12 *521days on account of the bridge being out. . . . Q. Mr. Miller, if you know, about what was it costing the Kitchen Lumber Company during the months of August and September, 1928, to ship this timber, everything that was done — cutting and delivering and shipping this timber— the average cost? Answer: $14.21 per thousand. . . . Q. What, if you know, was the average profits on that timber per thousand during these two months ? Answer: The average selling price for August and September was $24.54. ■ . . . Q. How much profit would that leave the Kitchen Lumber Company ? Answer: The profit was $10.33. . . . Q. That covered the time the bridge was out? Answer: It did. . . . We had sufficient equipment and sufficient force to keep the trains running had the bridge not been washed away.”

Ed Turbeyville, a witness for defendant, who was caretaker at San-teetlah Dam, testified to the heavy rainfall and also: “The water continued, to rise and at 4 p.m. I raised this gate another foot. The total opening of the gates was 7 feet — 4 feet on the first and 3 feet on the second. With this amount of gate opening, the water in the lake kept rising. I didn’t raise the gates any more until midnight, Sunday night. At that time, the water was still rising and I raised this gate another two feet. This gave a total gate opening on both gates of 9 feet. I slept from midnight, Sunday night, until Monday morning. I saw the dam again at 6 a.m. central time Monday morning, 3 September. That would be 7 o’clock eastern standard time. At that time, the water had risen an additional twenty-five hundredths of a foot from 12 o’clock Sunday night. This additional water was going over the top of the gates that had not been raised. At 6 a.m. central time, I raised the gates an additional four feet. It took me 20 minutes to raise the gate. This gave a total opening of 13 feet on the three gates. This opening did not reduce the height of the water. At eight o’clock central time the gauge showed the water was standing still. There had been no fall. At 9 o’clock central time, I raised another gate four feet. That started pulling the dam. I have crossed the fords between the San-teetlah Dam and the Kitchen Lumber Company’s bridge. I would say you would be lucky to ford with horses with two feet gate opening. At midnight Sunday night, there was nine feet of gate opening. The gates remained at that height until six o’clock central time, Monday morning (3 -September).”

On cross-examination: “At 6 o’clock, Monday morning, I raised another gate four feet. I did not phone anybody to look out. I knew they were not going to get into that deep water. They might see the water coming. I don’t know if they could hear it coming. When I raised the additional four feet, I phoned the operator at the power-*522bouse at tbe Santeetlab plant and gave bim tbe gate opening. . . . Tbe lake was full and running over wben I raised tbe gate four feet. It was running over tbe other gates.”

Tbe velocity of tbe water wben it left defendant’s dam and tbe time it took to reach plaintiff’s bridge was for tbe jury to determine. A fact can be proved by both circumstantial and direct evidence. Tbe evidence was sufficient to be submitted to the jury. Tbe finding of tbe jury on tbe first and second issues cannot be disturbed. In re Will of Bergeron, 196 N. C., 649 (652). Tbe charge of tbe able and learned judge in tbe court below is not in tbe record, tbe presumption is that be charged correctly tbe law applicable to tbe facts. Tbe serious question that confronts us in tbe trial on tbe 3d issue and tbe assessment of damages for delay by reason of tbe destruction of tbe bridge, on tbe 4th issue, (b.)

Tbe delay in rebuilding tbe bridge was 14 days — 12 working days. Tbe lumber hauled each day prior to tbe bridge washing away, according to plaintiff’s witnesses, was about 40,000 to 50,000 feet at a profit of $10.33 a thousand feet. Tbe jury has given tbe full amount of profit on a basis of about 50,000 feet a day, yet plaintiff bad this, some 600,000 feet of lumber on band. Plaintiff introduced evidence that in tbe time limits and contracts, it could not get its timber out. In Johnson v. B. B., 140 N. C., 574, tbe principle is laid down: Where tbe profits lost by defendant’s tortious conduct, proximately and naturally flow from bis act and are reasonably definite and certain, they are recoverable; those which are speculative and contingent, are not.

Tbe defendant contended that to rebut this evidence: “Tbe court erred in refusing to allow defendant’s witness, O. W. Hodge, to answer the question: ‘When did you begin to take up tbe railroad, you remember?’ Witness, if permitted to answer, would have stated: 'About tbe middle of April, 1930’; for that, tbe plaintiff bad offered evidence that it quit work about tbe middle of November, 1929, this evidence being offered for tbe purpose of showing that plaintiff could have continued operating until tbe railroad was taken up and thus have removed all of its timber.”

We think this exception and assignment of error is well taken. On tbe 1st and 2d issues, we find no error. On tbe 3d issue and tbe second part of tbe 4th issue (b), there must be a new trial.

No error on 1st and 2d issues.

New trial on 3d issue and second part of the 4th issue (b).