Carson v. Missouri, K. & T. Ry. Co.

• Decision Date: 19 December 1916
• Docket Number: No. 12189.,12189.
• Citation: 190 S.W. 949
• Court: Missouri Court of Appeals
• Parties: CARSON v. MISSOURI, K. & T. RY. CO.

190 S.W. 949

CARSON v. MISSOURI, K. & T. RY. CO.

No. 12189.

Kansas City Court of Appeals. Missouri.

December 19, 1916.

Rehearing Denied December 29, 1916.

Appeal from Circuit Court, Cooper County; J. G. Slate, Judge.

"Not to be officially published."

Action by Hinton V. Carson against the Missouri, Kansas & Texas Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

See, also, 184 S. W. 1039.

J. W. Jamison, Gen. Counsel Missouri, K. & T. Ry. Co., of St. Louis, for appellant. Sam. C. Major, of Fayette, and Williams & Williams, of Boonville, for respondent.

JOHNSON, J.

This action is founded upon the alleged noncompliance by defendant railroad company with the provisions of section 3150, R. S. 1909, requiring such companies — "to cause to be constructed and maintained * * * suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains, or water courses, so as to afford sufficient outlet to drain and carry off the water, including surface water, along such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad."

Plaintiff owns a farm near Pearson in Howard county lying in bottom lands just south of defendant's railroad which runs east and west. A natural water course known as Salt creek comes out of the hills lying to the north and turning east runs parallel to the railroad on the north side thereof, a distance of 3 or 3½ miles east, when it crosses over to the south side of the railroad and continues on to the Missouri river. In August, 1910, and in June, 1912, heavy rainfalls caused Salt creek to overflow and inundate the bottom lands, including plaintiff's farm, and the flood waters submerged the farm for such a time that the crops were destroyed.

In two counts the petition seeks the recovery of damages for these inundations on the ground that they were caused by the failure of defendant to construct and maintain a drainage ditch along the south side of the roadbed to drain off the flood waters on the subsidence of the overflow of Salt creek. A trial of the issues raised by the pleadings resulted in a verdict and judgment for plaintiff on both counts, and in due course of procedure an appeal was allowed defendant to the Supreme Court. Throughout the case defendant attacked the constitutionality of section 3150, R. S. 1909, but the Supreme Court held that issue had been foreclosed in the decision in Tranbarger v. Railroad, 250 Mo. 46, 156 S. W. 694, and transferred the cause to this court. Counsel for defendant insist that a verdict on both counts should have been directed in its favor: First, because the evidence of plaintiff fails to show that the presence of a drainage ditch along the south side of the roadbed would have more expeditiously drained off the accumulated water and thereby prevented the destruction of the crops; and, second, that both overflows were caused by rainfalls so violent and unusual as to fall within the legal classification of acts of God.

The evidence of plaintiff tends to show that before the railroad was built the natural drainage which was northward into Salt creek was sufficient to drain flood waters from the farm in a period so short that growing crops would not sustain any serious injury from them. The railroad was upon an embankment four or five feet high which was not pierced by any lateral ditches or drains to carry the water northward into the creek. There is much plausibility in the view of counsel for defendant that such drains or ditches would have afforded no sufficient...