Bailey v. Wabash Ry. Co.

• Decision Date: 02 December 1918
• Docket Number: No. 12824.,12824.
• Citation: 207 S.W. 82
• Parties: BAILEY v. WABASH RY. CO. et al.
• Court: Missouri Court of Appeals

207 S.W. 82

BAILEY v. WABASH RY. CO. et al.

No. 12824.

Kansas City Court of Appeals. Missouri.

December 2, 1918.

Appeal from Circuit Court, Ray County; Frank P. Divilbiss, Judge.

"Not to be officially published."

Action by James Bailey against the Wabash Railway Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

J. L. Minnis, of St. Louis, S. J. & G. C. Jones, of Carrollton, and Lavelock & Kirkpatrick, of Richmond, for appellants.

George W. Crowley, M. M. Milligan, and Garner, Clark & Garner, all of Richmond, for respondent.

BLAND, J.

This is an action to recover damages for the overflow of plaintiff's lands resulting in injury to his land and the destruction of his crops.

The facts show that what is known as Foster creek in Ray county, Mo., runs parallel with the roadbed of the Wabash Railway's (formerly the Wabash Railroad's) right of way in an easterly and westerly direction on the north side of plaintiff's 22 acres of land. Plaintiff's land is lower than the embankment of the railroad. The creek is on plaintiff's land about 75 feet south of the railroad tracks. Foster creek originates several miles back and north of the railroad in the hills of Ray county above the Missouri river. It flows under the railroad about 1½ miles west of plaintiff's land. A short distance east of the place it was obstructed by defendants, it turns in a southeasterly direction and flows about three-fourths of a mile and empties into the Missouri river. The railroad embankment at the place the creek was obstructed was built upon bottom land, the earth being of a seepy nature. The company, for at least two years previous to the flooding of plaintiff's land, had suffered from slides of the embankment to the south or towards the creek. The summer of 1915 was one of a great many rains, and the high embankment maintained by the railroad had slipped or slided at various times during that summer so that it would leave the tracks suspended above the roadbed. To remedy this the company had caused hundreds of loads of dirt, rock, and various other debris to be hauled and dumped on this embankment; but, on account of the nature of the earth upon which this added weight was placed, the embankment continued to slip and slide toward the creek until finally a heavy rain came about the first of July causing a further slide of about 200 feet of earth from the embankment into the creek, so that the latter was completely obstructed resulting in a very large volume of water being diverted upon plaintiff's land destroying his crops thereon and cutting away and destroying between one and two acres of land belonging to him.

Among the defenses pleaded was "unprecedented and extraordinary rainfall" or act of God. Plaintiff's instruction No. 1 covering the entire case and directing a verdict entirely ignored the question of unprecedented rainfall. This was error. Cooney v. Pryor, 203 S. W. 630, Rifle v. Wabash Railway, 207 S. W. 78, and Paulson v. Wabash Railway, 207 S. W. 81, both decided at this sitting but not yet officially reported.

But it is contended by plaintiff that there was no evidence of an extraordinary rainfall. We are unable to agree to this. It is true that some of plaintiff's witnesses testified that the rain occurring at the time of the flooding of plaintiff's lands was no greater than had occurred in prior years,...