Brown v. Chicago & Alton R.R. Co.

• Decision Date: 31 October 1883
• Citation: 80 Mo. 457
• Court: Missouri Supreme Court
• Parties: BROWN v. THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.

80 Mo. 457

BROWN

v.THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Audrain Circuit Court.--HON. ELIJAH ROBINSON, Judge.

REVERSED.

Mcfarlane & Trimble for appellant.

Plaintiff's fourth instruction was erroneous in assuming the dam caused the overflow, and in directing the jury to assess damages for injury to the land itself, and also to its rental value. Revised Statutes, section 788, provides a special remedy for the permanent injury to the land, which excludes all others, and any instruction that plaintiff was entitled to damages for such permanent injury, was improper. 1 Sutherland on Damages, 202; Sedgwick on Damages, 162; Wood on Nuisances, § 856. The rule for the measure of damages, as stated in the instruction, was erroneous. 3 Sutherland on Damages, 417; Kemper v. Louisville. 14 Bush 87; Francis v. Schoelkuff, 53 N. Y. 152; Pinney v. Berry, 61 Mo. 361. Defendant had a right to an independent trial of the fact whether the maintenance of the dam produced the sickness. 3 Sutherland on Damages, 417; Wood on Nuisances, §§ 495, 496, 497; Illinois Central R. R. Co. v. Grabil, 50 Ill. 241; Hutchins v. Smith, 63 Barb. 252.

T. B. Buckner for respondent.

Sickness causing a nuisance, is an element of special damages when it is averred. Ellis v. Railroad Co., 63 Mo. 131; Story v. Hammond, 4 Ohio 376; Keerney v. Farrill, 28 Conn. 317; Mills v. Hall, 9 Wend. 315; Wood on Nuisances, § 724; Pinney v. Berry, 61 Mo. 359. The case was fairly submitted to the jury, and the verdict should not be disturbed.

EWING, C.

The respondent owned a farm about one mile above the point where the appellant's line of railroad crosses Beaver Dam fork of Salt River, at which place appellant had erected a dam for the purpose of procuring water for the use of its road.

Respondent, in August, 1880, commenced a suit in the Audrain circuit court for damages, charging that appellant so negligently and carelessly constructed said dam as to cause the creek to back up and overflow respondent's farm, and cause the damage complained of; and alleged as special damages, that grasses were destroyed, trees killed, the land rendered useless for cultivation or grazing purposes, floating off logs, timber and rails, depositing debris and drifting trash on said lands, cutting off plaintiff's outlet to other lands, destroying roads and fords and crossings, and rendering the stream impassible, destroying a valuable sandbank which had been theretofore a source of revenue, diminishing the rental value of said land one-half, and causing sickness in plaintiff's family, whereby he was damaged $2,000.

The defendant answered, alleging existence as a railroad corporation; that it erected the dam for railroad purposes under the law, and did so in a careful and skillful manner.

Plaintiff offered evidence tending to prove the allegations in the petition, and also that the dam caused the overflow. The defendant offered evidence tending to prove that there was an exceedingly heavy rain, and a general overflow, that the top of the dam was several feet below the lowest part of plaintiff's land, and that the back-water from the dam did not make the creek water come to the top of the banks anywhere, and that the dam cannot cause the water to overflow plaintiff's land “as long as water continues to seek a level.”

Among others, the court gave the following instruction for the plaintiff, against the objection of the defendant:

4. In assessing the damages the jury will take into consideration all injuries which they shall believe from the evidence was caused by said dam, back-water and overflow to plaintiff's land, including all injuries to grasses, trees, standing and being on said land, and injuries to the land itself, and for logs and rails floated off, and for injuries to roads and passways on plaintiff's land crossing said stream, and by injuries done by cutting off one portion of plaintiff's land from another, and for injuries to a sand-bank or sand-banks on plaintiff's land, and injuries to rental value of said land caused by said back-water and overflow of said land, and the same becoming sickly, and for injury to the health of plaintiff's family.

This instruction is objectionable for more reasons than one. All the damages claimed by plaintiff are special, and the instruction must be confined to the pleading. A party cannot be...