Brown v. St. Louis & San Francisco Ry. Company
| Decision Date | 29 January 1923 |
| Parties | D. S. BROWN, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Lawrence County Circuit Court.--Hon. Charles L. Henson Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
H. H Bloss for appellant.
(1) It was the duty of the defendant to have made and maintained its bridge across Clear Creek so as to have permitted the passage of the waters of Clear Creek and also all surface waters that might accumulate there and its failure to do so would subject it to the damage sustained by the adjoining landowners, caused by its neglect. Secs. 9850, 9953, R. S. 1919; South Side Realty Co. v. Ry. Co., 154 Mo.App. 364; Williamson v. Ry. Co., 115 Mo.App. 72; Cox v. Ry. Co., 174 Mo. 588; Transberger v. Ry. Co., 250 Mo. 46; Pace v. Ry. Co., 174 Mo.App. 227; Graves v. Ry. Co., 69 Mo.App. 574; Raney v. Ry. Co., 137 Mo.App. 537; Cooper v. Ry. Co., 123 Mo.App. 141; Edwards v. Ry. Co., 97 Mo.App. 103; Bunton v. Ry. Co., 50 Mo.App. 421. (2) The only instance against which the defendant would not be liable for an insufficient bridge would be an unprecedented storm which caused a flood of such a volume as no one then living had seen in that neighborhood, otherwise it must anticipate such flood waters. South Side Realty Co. v. Ry. Co., 154 Mo.App. 364; Houghtaling v. Ry. Co., 117 Ia. 540. (3) The evidence showed that on numerous occasions the waters backed up against the defendant's bridge and railroad embankment, hence; even if the flood of 1919, was unprecedented, yet if its bridge contributed to the damage sued for, the defendant was liable, because this involves the question of whether the unprecedented flood, if such it was, was the sole cause of the damage uninfluenced or caused by any neglect of the defendant. H. A. Johnson & Co. v. Springfield I. & Ref. Co., 143 Mo.App. 441; Standley v. Ry. Co., 121 Mo.App. 177; Brink v. Ry. Co., 17 Mo.App. 177; Booker v. Ry. Co., 144 Mo.App. 273. (4) The court should have permitted the evidence offered to have been introduced, relative to the enlargement of the bridge to twice its water-carrying capacity; this was an admission of the insufficiency of the former water-carrying capacity of the bridge. Humphrey v. Ry. Co., 131 S.W. 715, 718.
W. F. Evans, Mann & Mann and William B. Skinner for respondent.
(1) Section 9850, R. S. 1919, authorizes railroad companies to construct their road across, along or upon any stream of water or watercourse . . . which the route of its road shall intersect or touch, but provides that the company shall restore the stream or watercourse to its former state, or to such state as not unnecessarily to have impaired its usefulness. R. S. 1919, sec. 9850; Culver v. Railroad, 38 Mo.App. 130; Harrelson v. Railroad 151 Mo. 482. (2) The grant of a right of way to a railroad company carries with it the right to make the necessary embankments, culverts and ditches for the proper grade and protection of the road, and if in exercising this right with due care and skill, the flow of surface water from adjoining lands is obstructed it is damnum absque injuria. Benson v. Railroad, 78 Mo. 504. (3) Where there is lawful authority for the construction of a bridge over a stream the person building is liable only in case of negligence or unskillfulness in the manner of doing the work to one suffering from its interference with the running water, the maxim of the law in the circumstances being that "the water runs and ought to run as it has been accustomed to run." Abbott v. Railroad, 83 Mo. 271. (4) Damages from overflowing during an extraordinary flood, alleged to have been caused by a railroad's negligence in leaving insufficient opening in embankment, cannot be allowed unless the injury would not have occurred, unless the opening was too small. Sherwood v. Railroad, 187 S.W. 260. (5) In the matter of constructing bridges over streams or watercourses the rule is that Railroad Companies are only required to provide openings of sufficient size to carry such volume of water as could reasonably be expected to pass through them and in the giving of instructions trial courts should conform to this rule. King v. Lusk, 196 S.W. 69; Realty Company v. Railroad, 154 Mo.App. 364. (6) As to the Statute of Limitations the rule as deduced from all the authorities is that where the nuisance is a permanent structure such as a railroad bridge or dam obstructing the flow of the water of a natural stream that is bound to continue as long as it remains the same, then the entire damage, present and prospective, accrues as soon as such actual damage begins and is discoverable, and is the subject of a single action, which must be brought within the period of limitation after such accrual. Powers v. Railroad, 158 Mo. 87; Gorman v. Railroad, 166 Mo.App. 320. (7) Under repeated decisions of the Supreme Court only such issues as are made by the pleadings can be inquired into on a trial or submitted to the jury for their determination. Abbott v. Railroad, 83 Mo. 277-8. (8) In an action for damages for overflow of land charged to have been occasioned by insufficient opening in a bridge over a stream of water evidence of repairs or changes in the bridge subsequent to injury complained of is not competent. Clonts v. Gaslight Company, 160 Mo.App. 456; Bujalo v. Basket and Box Company, 227 S.W. 844.
This case was submitted at the March Term of this year and assigned to Judge BRADLEY who wrote an opinion concurred in by Judge FARRINGTON and myself in which the judgment was reversed and the cause remanded. A motion for rehearing was filed by defendant and sustained. The cause was re-argued at this term and assigned to the writer to prepare an opinion.
Plaintiff sought damages to his lands and crops due to the alleged obstruction of a creek. The cause was tried before the court and a jury, and verdict and judgment went for defendant, and plaintiff appealed.
In the former opinion by my brother BRADLEY, a very full and complete statement of all the facts is made but for the purpose of the discussion of the questions which we now deem pertinent the following statement of the case will suffice.
Plaintiff's petition is in four counts. In the first count his cause of action is based upon the alleged failure of defendant to maintain an opening under a bridge across a creek, of sufficient size to permit the waters of the creek in times of freshet to pass. That in October, 1919, there was a flood in this creek and on account of the insufficiency of the opening under the bridge, the flow of water was obstructed to such an extent that it backed up over plaintiff's land and broke over the top of the railroad embankment and washed the embankment away and washed away the soil from part of plaintiff's land with it and thereby damaged this land. The other three counts of the petition were for alleged damages to crops on the land for the years 1916, 1917, and 1919, a separate count for each year, and were based on the opening under the bridge being too small and thereby causing the water to back up upon plaintiff's land and damage his crops.
The answer was a general denial and plea of the five and ten years Statute of Limitations.
Plaintiff, the appellant, alleges error in the instructions to the jury and the admission and exclusion of testimony. Defendant, the respondent, contends there was no error as plaintiff claims and then makes the further point that its demurrer to the testimony, in the form of peremptory instructions asked, should have been sustained because the plaintiff on the conceded facts could not recover and therefore the judgment in its favor should be affirmed regardless of any errors at the trial.
A separate demurrer to the evidence under each count of the petition was filed by defendant. These are based on the contention that the evidence shows plaintiff's cause of action on each count to be barred by the Statute of Limitations and that the evidence does not show that the opening under the bridge caused the damage. On oral argument attention was called to the fact that there was a small bridge and opening under it maintained at a point about one-fourth mile west of the bridge over the creek and at a place where water which collected there could not get back into the channel of the creek above the bridge and if plaintiff had any cause of action, it should have been based on that bridge being too small instead of the one over the creek, or the failure to maintain other openings between that bridge and the one over the creek.
We shall consider the demurrer to the evidence based on the Statute of Limitations first.
In the former opinion filed in this case this court speaking through Judge BRADLEY, who prepared that opinion, said:
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