Bowen v. Kansas City

• Decision Date: 07 March 1910
• Citation: 126 S.W. 790,140 Mo.App. 695
• Parties: MARY E. BOWEN, Respondent, v. KANSAS CITY, Appellant
• Court: Kansas Court of Appeals

126 S.W. 790

140 Mo.App. 695

MARY E. BOWEN, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

March 7, 1910

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

AFFIRMED.

Judgment affirmed.

John T Harding, James W. Garner and Hunt C. Moore for appellant.

Harry B. Walker and Dana, Cowherd & Ingraham for respondent.

(1) Respondent was not obliged to cover the feature of contributory negligence set up in appellant's answer because there was no evidence to support it. Hovarka v Transit Co., 191 Mo. 451; Fisher v. Transit Co., 198 Mo. 592. (2) It is now well-settled law in this State that surface water is a common enemy and that anyone may so shape his property as either to divert the flowing of the same upon him or throw it off upon the servient estate, provided it be not done in a reckless manner. Cox v. Railway, 174 Mo. 606; Gottenetroeter v. Kappleman, 83 Mo.App. 290; Rariden v. Railroad, 98 Mo.App. 470. (3) The fact that plaintiff's instruction did not negative contributory negligence was not error. If defendant desired that point covered, it should have asked an appropriate instruction and then only in the event that there was evidence to warrant the submission. Non-direction in civil cases is never reversible error. Browning v. Railway, 124 Mo. 72; Williamson v. Transit Co., 202 Mo. 373; Marion v. Railroad, 124 Mo.App. 449; Moss v. Railroad, 128 Mo.App. 388.

OPINION

ELLISON, J.

This action is for damages caused by surface water flowing into the basement of plaintiff's building. She recovered judgment in the circuit court.

She was the lessee for a term of years of a hotel building fronting on one of the streets of the defendant city. Back of the hotel building proper was a building containing the heating plant whereby the hotel rooms were heated and hot water provided for the use of the hotel and the guests. It is alleged that the water was caused to flow in upon the boiler room so as to flood it and prevent its use; that in consequence of this plaintiff was damaged by reason of not being able to furnish heat or water to her guests, who, in consequence, left her hotel; that she was compelled to lay out large sums of money in protecting the building; and that her furnace and hot water plant was also injured.

It appears that the grade of the streets and alleys on which plaintiff's property was situated was from ten to twenty feet below the natural surface at that immediate part of the city. That while the street has been cut down to the grade, the alley for a time was not. It also appeared that the lots adjoining the hotel on the south had not been cut down to the grade. With the alley not graded the surface water flowed over its surface to the north, but the city cut it down to grade so that the surface thereafter flowed to the south. The grading left two vertical walls or banks of earth running with the alley south and beginning about at plaintiff's property. That wet weather and freezing and thawing had the effect to cause the banks to fall and wash into the alley so as to form a dam for the surface water, which was thereby run into the basement of plaintiff's building and flooding her floors to such depth as to destroy her plant as above stated.

The defendant denied any negligence in allowing the obstruction to remain and claimed that the water found its way into the boiler room from seepage through the walls, and that the lot immediately south of plaintiff's property, being much higher, water ran from it through a trench along the side between the two properties and found its way into the boiler room; and that a yard or kitchen drain leading to the sewer was allowed to clog.

Plaintiff's instructions did not include a proviso as to her contributory negligence, and for that reason defendant now insists they were erroneous. The instructions properly omitted any reference to contributory negligence on plaintiff's part for the reason that, in our view, there was no issue of that nature made by the evidence. The tendency of the evidence in defendant's behalf was to show that the water got into plaintiff's building from other causes, with which it was not connected and for which it could not be charged. That would have been a good defense if it had been made out to the satisfaction of the jury.

Contributory negligence, as applied to this case, would...