Torpey v. The City of Independence
| Decision Date | 10 January 1887 |
| Parties | JOHN TORPEY, Respondent, v. THE CITY OF INDEPEND ENCE, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.
Affirmed.
The case is stated in the opinion.
GATES & WALLACE, for the appellant.
I. The petition does not state a cause of action against defendant and its objection to the admission of any testimony under it should have been sustained; and also its motion in arrest of judgment; and its instruction in the nature of a demurrer to the evidence should have been given. See Imler v. City of Springfield, 55 Mo. 119; Benson v. Railroad, 78 Mo. 504; Stewart v. City of Clinton, 79 Mo. 603; Abbott v. Railroad, 83 Mo. 272.
II. The court erred in giving the instruction asked by plaintiff, and the one given of its own motion, fixing the measure of damages. (a ) Because the damages are not limited to the amount claimed in the petition, viz: one thousand dollars. (b ) Because " this is an action for damages consequent upon the flooding of plaintiff's land." " The plaintiff can only recover for damages done up to the institution of the suit." Benson v Railroad, 78 Mo. on page 511.
III. The record not only fails to show that the grade of Pacific street had ever been established by ordinance, or that any change in its grade as used was ever made by ordinance, but it shows affirmatively that there is no such ordinance. See testimony of the city clerk, Armstrong. Therefore, the defendant's demurrer to the evidence, at close of plaintiff's evidence in chief, ought to have been sustained, and instruction number five, asked by defendant should have been given. See Stewart v. City of Clinton, 79 Mo. 604. It was certainly error to have refused instruction number seven, asked by defendant.
IV. It was an unusual and extraordinary storm by which plaintiff's premises were flooded. Instruction number nine, asked by defendant, should have been given. Wharton on Negligence, sections 114, 115 and 558; Flori v. City of St. Louis, 69 Mo. 341; Elliot v. Railroad, 76 Mo. on page 534.
V. Even if this had been an action for negligently constructing the switch, there was no evidence to support such a charge. In Abbott v. Railroad (83 Mo. 286), it is held that a railroad company is not required " to provide water ways or culverts across the road-bed or through its embankments so as to allow surface water to pass off in that direction."
A. COMINGO, with CHAS. S. CRYSLER, for the respondent.
I. The instructions, taken as a whole, fairly and correctly present the issues under the pleadings and the evidence. The verdict and judgment will not be disturbed by this court, unless it appear that competent and material evidence has been excluded, or that which was incompetent and immaterial was admitted at the trial. Karle v. Railroad, 55 Mo. 482. And if the instructions given fairly present the issues and correctly declare the law it is not error to refuse others of similar import. This rule is without exception. Newton v. Curran, 77 Mo. 326; Brown v. Ins. Co., 68 Mo. 139; Martin v. Smyler, 55 Mo. 577.
II. Defendant had no authority to damage, or to authorize the railway company to damage plaintiff's property, without compensating him therefor. In wrongfully and negligently permitting the railway company to construct and maintain the switch in the manner alleged plaintiff was damaged; and the court was warranted in declaring the law of defendant's liability therefor as asked by plaintiff, and in refusing instructions based upon a theory contrary to the instructions for plaintiff.
III. In any view that can possibly be taken of the statement of plaintiff's case in his petition, it will be held sufficient at this stage of the proceedings in the cause. It certainly states a cause of action, although it may not have been drawn with as much philological precision as was possible. Berthold v. Clay Fire Ins. Co., 2 Mo.App. 311; Brown v. Kansas City, 51 Mo. 454; Cape Girardeau, etc., v. Kimmel, 58 Mo. 83; Prust v. Bircher, 3 Mo.App. 565; Stanley v. Railroad, 84 Mo. 625.
IV. Defendant having graded and macadamized and used the street in question, pursuant to an ordinance adopted fifteen years prior to the commission of the wrongs and injuries complained of, cannot now shield itself from liability under the facts disclosed by the evidence, by showing that the grade of the street had not been established by ordinance.
V. The instructions as to the measure of damages, present no reversible error, by reason of the fact that they do not limit the recovery to one thousand dollars; the amount claimed in the petition. It is manifest that the defendant was not prejudiced by this omission. Morris v. Railroad, 79 Mo. 370; Blewett v. Railroad, 72 Mo. 584. Not only so, but if the instruction given at the instance of defendant, as to the measure of damages, contains the same error, the judgment will not be reversed on account of error in the first instance. Noble v. Blount, 77 Mo. 235.
This is an action to recover damages alleged to have been sustained by plaintiff in consequence of the defendant, a municipal corporation, wrongfully and negligently permitting the Missouri Pacific Railroad Company to construct and maintain in front of plaintiff's hotel property, situated on one of defendant's public streets, a side track, above the grade of the street, whereby the surface water flowing from adjacent lands was caused to overflow and inundate plaintiff's said property, and to fill his cellar, etc. The damages were laid at one thousand dollars.
The plaintiff recovered judgment for fifty dollars, from which the defendant has appealed.
I. The chief contentions of defendant are, that it had never established any grade for this street; that the reflux of the water from the street on to plaintiff's lot was not occasioned by the construction of the railroad track on the street, but by reason of an embankment of dirt thrown up on the side of the street outside of the railroad track; and, third, that the water thus turned on to plaintiff's property was surface water, for which no liability attached to defendant.
The evidence showed that the street in question was a public highway of the city, and ran a few feet from plaintiff's hotel.
In 1867 the defendant adopted the following ordinance:
The third section of this ordinance made the necessary appropriation for executing the work. The work was done under this ordinance. And while it directed no special grade to be made, it directed a proper grade, and evidently acquiesced for a long period of time in that adopted by the contractor or its servants doing the work. The duty then devolved on defendant to maintain the street in a reasonably safe condition for publicuse, and to keep it free from obstructive nuisances. Oliver v. City of Kansas, 69 Mo. 83.
It may be conceded to the defendant, that it was competent for it thereafter, for public purposes, to alter the grade so established, and that it would not be answerable in damages to an adjacent land owner for injuries to his property consequent upon the obstruction of the flow of mere surface water. Stewart v. City of Clinton, 79 Mo. 603. But that, in our opinion, is not this case.
The evidence further shows, that on...
To continue reading
Request your trial