
    TEXAS & N. O. R. CO. v. OCHILTREE et al.
    (Supreme Court of Texas.
    May 3, 1911.)
    Trial (§ 295) — Instructions — Construction.
    As charges should he read together and considered as a whole, a too broad general statement of the duty of a railroad company, on constructing its road, as to constructing and keeping open culverts is not cause for reversal, where immediately afterwards the court correctly charges the law directly applicable to the facts.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by J. A. Ochiltree and another against the Texas & New Orleans Railroad Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (127 S. W. 584), and defendant brings error.
    Affirmed.
    Baker, Botts, Parker & Garwood and Parker, Orgain & Butler, for plaintiff in error. Adams & Huggins, for defendants in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

This was a suit by J. A. Ochiltree and another against the Texas & New Orleans Railroad Company for damages to their crops of rice, due, as was averred, to overflow of their lands caused by the improper construction of appellant’s railway and its failure to maintain sluices and culverts sufficient to carry off the natural flow of surface water from their lands. A full statement of the facts is given in the opinion of the Court of Civil Appeals (127 S. W. 584), which need not be here repeated. The writ of error was granted because it was 'believed, as presented, that there was error in the second paragraph of the court’s charge to the jury, that paragraph being as follows:

“It is the duty of á railroad company, on constructing its roadbed, to make, construct, and keep open such culverts or sluices as the lay of the land requires as are necessary to drain the same, and it would be liable in damages for injury sustained by others in failing to construct'and keep open the same.”

There is undoubtedly merit in appellant’s contention that a railway company is only required to construct and maintain such sluices and culverts as may be necessary to carry off the water naturally draining to and across its right of way, and is not required to construct such culverts and sluices as may under all circumstances be necessary to drain the adjacent lands. This instruction however is immediately followed by paragraphs 3 and 4 of the court’s charge, which are to this effect:

“(3) If you believe, from a preponderance of the evidence in the case, that the plaintiffs, Brown and Ochiltree, had a crop of rice planted on the land described in this petition, by their tenant, Womack, for the years 1906 and 1907, lying north of defendant’s railroad track, and you further believe that the plaintiffs sustained damage to said crops for both or either of.said years by reason of the water backing up and standing on the land they had in cultivation, and you further believe that said water was backed upon said land and stood thereon, because the defendant, in the construction and maintenance of' its roadbed, failed to make, construct, and keep open sufficiently, culverts to let the water pass or run off of the crop or crops of the plaintiffs, and you further find that the failure to maintain and keep open said culverts was the proximate cause of damage, if any, to the plaintiffs, and that plaintiffs would not have been damaged, if they were damaged, but for the failure of defendant, if it did fail tó do so, to construct and keep open sufficiently culverts to drain and let pass off the surface water from plaintiffs’ crop or crops of rice, you will find for the plaintiffs.
“(4) But if you believe that the defendant made and kept open sufficiently culverts along and through its roadbed to drain the surface water from the rice farm of the plaintiffs, and that said culverts, if sufficient otherwise to drain said land, were not obstructed in such a way and manner as to prevent the passage of such water as would naturally flow to them, under the circumstances and evidence in the ease, from the rice farm of the plaintiff, you will find for the defendant.”

It will be seen that paragraph 3 submits with. substantial accuracy the grounds upon which a recovery could be had, and paragraph 4 presents the defense of the railway company with substantial accuracy. It is essential, in passing on all charges, that they should be read together and construed as a whole, and mere error, general in its character and not submitted as a ground for a finding, but given merely in general terms as a definition, should not operate to cause a reversal of a cause, where, in connection with same, the court correctly charges the law directly applicable to the facts, and where, taken as a whole, it is obvious that, so considered, the jury could not have been misled by the erroneous general language of the charge. A careful consideration of the court’s entire charge has convinced us that, while not happily expressed, it is not erroneous in any substantial respect, such as should operate to reverse the judgment. The other questions were correctly disposed of by the Court of Civil Appeals, and need not be here considered.

Finding no error in the judgment, it is affirmed.  