Brown v. St. Louis-San Francisco Ry. Co.

• Decision Date: 26 January 1925
• Docket Number: No. 3534.,3534.
• Citation: 268 S.W. 678
• Parties: BROWN v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

268 S.W. 678

BROWN v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 3534.

Springfield Court of Appeals. Missouri.

January 26, 1925.

Rehearing Denied February 18, 1925.

Appeal from Circuit Court, Lawrence County; Chas. L. Henson, Judge.

Action by D. S. Brown against the St. Louis-San Francisco Railway Company. From the judgment, defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and Mann & Mann and W. B. Skinner, all of Springfield, for appellant.

H. H. Bloss, of Aurora, for respondent.

COX, P. J.

This is the second appeal in this case. The first is reported in 212 Mo. App. 541, 248 S. W. 12. The action is for damages to land and crops, alleged to have been caused by the failure of the railway company to provide and maintain a sufficient opening under a bridge over a creek, in consequence of which the waters were dammed up above the railroad grade until it broke over the embankment and washed it away and with it part of the soil from plaintiff's land, and also certain crops thereon. The petition was in four counts. The verdict was for plaintiff on the first count and for the defendant on the other three counts. Defendant appealed.

Since the verdict was for defendant on all counts of the petition except the first and plaintiff did not appeal, we need not give those counts any further attention. The first count in the petition on which plaintiff recovered alleges injury to the land of plaintiff by the soil being washed away in time of high water, and the liability of defendant is based on the failure to provide and maintain a sufficient opening under a bridge across Clear creek, as required by statute, where defendant's road crosses plaintiff's land. On the former appeal in this case the defendant insisted that the plaintiff's right of action was barred by the statute of limitations. We then held adversely to that contention and still adhere to that holding. It was also contended that, if plaintiff had any cause of action at all, it should have been based on the failure of defendant to maintain a sufficient opening at a point west of the bridge from Clear creek, and could not be based on an insufficient opening under the bridge. On that question we held that defendant's position was correct as to any damage that might be done by the water until it reached a depth sufficient to submerge the banks of Clear creek at the bridge, but since the defendant had elected to provide no opening to carry off flood waters except the opening under the bridge, the When the case was retried, that course was followed and plaintiff's recovery was restricted in accordance with our holding.

It was also contended in the former trial and in the second trial that the flood which did the damage was of such an extraordinary character that defendant could not be held liable for the damage. That issue was properly submitted to the jury and the finding against defendant binds us.

The damage alleged and proven was to land lying west of the creek. Plaintiff was permitted, over the objection of defendant, to show that defendant had at one time maintained a culvert or opening for the passage of water through the railroad grade east of the creek, but had closed it before the alleged injury in this case occurred. This is assigned as error because, as contended, the defendant had the right to guard against surface water in its own way as long as the only effect of what it did was to force the accumulated water back into or toward the channel of the creek, and in doing that it could not be held responsible for damages done on the other side of the creek by the water overflowing on that side, even though such overflow might not have occurred had the opening on the east side of the creek not been closed. To sustain this contention we are cited to Goll v. Chicago & A. R. Co., 271 Mo. 655, 197 S. W. 244. We recognize the binding authority of the Goll Case and approve the principle there announced. Under the authority of that case, the defendant could, by embankment on the east, force the overflow water back toward the channel of the creek and if, in doing so, it filled and overflowed the stream and such overflow should cause damage on the west side, it would not be liable. This case, however, is distinguished from the Goll Case on the facts. In that case, there were no obstructions to the natural flow of the water maintained by the railroad either in the stream or on the opposite side, while in this case there was a bridge over the stream alleged to be without a sufficient opening under it and an embankment extending west from the bridge across the plaintiff's land to a road grade on the west, so that the water west of the creek above the railroad embankment was held in a pocket until it rose high enough to overflow the embankment. We do not understand the Goll Case to go to the extreme of holding that a railroad can, by embankment, force water toward a stream in such quantity as to fill and overflow it on the opposite side and at the same time maintain an embankment on such opposite side that will prevent its free passage. The railroad company must provide and maintain sufficient openings to allow the water, including surface water, to pass, so that it may connect with a drain or water course below, and cannot escape liability to do so by merely shifting the water from one side of the stream to the other side. When a railroad crosses a stream and thereby obstructs the flow of water that accumulates above its embankment and prevents its passing and flowing into a drain or water course below, then the statute applies and the entire surface covered by water, for which the railroad must provide passage, becomes, in legal effect, the channel. In other words, when there is an overflow which the railroad could not obstruct and the banks of the stream are submerged by the accumulation of water, the natural channel of the stream is merged into the greater area over which the water flows and the railroad must provide proper means of passage fox the water regardless of the natural channel of the stream. We think the evidence of an opening east of the bridge having been closed by defendant was competent as tending to show, with other physical facts, that the defendant railroad relied solely on the opening under the bridge over the creek to carry all the water, including overflow water. In any event, since the liability in this case was limited to damages caused by the water after the banks of the stream at the bridge became full, the admission of the testimony as to the small opening east of the bridge being closed was harmless.

The alleged damage occurred in 1919, while the railroad was under the control of the federal government, and it was shown that prior to the flood the government had changed the...