Chambers v. Chicago Rock Island & Pacific Railway Co.
| Decision Date | 03 April 1905 |
| Citation | 86 S.W. 501,111 Mo.App. 609 |
| Parties | LOUIS CHAMBERS, Respondent, v. CHICAGO ROCK ISLAND & PACIFIC RAILWAY CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Brown & Dolman for appellant.
(1) To justify the giving of this instruction the plaintiff's evidence must have tended to prove: First. That the defendant negligently permitted the pipe to become and remain choked and obstructed as therein stated: Second. That the defendant knew or by the exercise of ordinary care could have known of such condition, and failed to clear away the obstruction and: Third. That the waters of the branch were by such obstruction caused to accumulate on plaintiff's land and damaged it. There was no evidence of any of these facts. There being no evidence upon which the jury would be authorized to find either of the matters predicated in this instruction as grounds of recovery, the case must be reversed. Evans v. Railway, 106 Mo. 600; Robertson v. Railway, 152 Mo. 391; Oates v Railway, 168 Mo. 549; Seckinger v. Manufacturing Co., 129 Mo. 590; Haworth v. Railway, 94 Mo.App. 215, 227; Marr v. Beneker, 92 Mo.App. 651; McAtee v. Valandigham, 75 Mo.App. 45; McCarty v Fagin, 42 Mo.App. 619; Campbell v. Van Houten, 44 Mo.App. 231.
Bayer & McNeely for respondent.
(1) Plaintiff's instruction numbered 2 is supported by some evidence. The evidence is clear that the iron pipe at one time was "choked plum up with drift." An instruction may properly be given if supported by some evidence, though slight, and it is sufficient if such evidence is only inferential, and where evidence has even some inferential potency it should be submitted to the jury. Hayden v. Parsons, 70 Mo.App. l. c. 498; Chemical Co. v. Lackawana Line, 85 Mo.App. 667; Tyler v. Hall, 106 Mo. l. c. 324; Womack v. St. Joseph, 168 Mo. l. c. 243. (2) The instructions taken as a whole presented the law of the case fairly. If all of the instructions, taken together, properly presented the case to the jury, the fact that one of them standing alone might be misleading, will not cause a reversal of the judgment. Dewees v. Mining Co., 54 Mo.App. l. c. 484; same case approved in the 128 Mo. 423; Keen v. Schweigler, 70 Mo.App. 409. (3) A reversible error is one that materially affects the merits of the action, and where judgment is manifestly for the right party it will not be disturbed. Walker Bros. v. Railway, 68 Mo.App. l. c. 483; Swanson v. Sedalia, 89 Mo.App. 121; Comfort v. Ballingal, 134 Mo. 281.
The verdict returned by the jury is the only one that could have been found consistent with the evidence. In such a case the judgment will be affirmed, although an objectionable instruction was given. And under such circumstances this court will not interfere as it is prohibited from doing so by statute, which provdies that this court shall not reverse the judgment of any court unless it shall believe that error was committed by such court materially affecting the merits of the action. R. S. 1899, section 865; Greer v. Bank, 128 Mo. l. c. 575; Vogg v. Railway, 138 Mo. l. c. 180; Henry v. Railway, 113 Mo. l. c. 538; King v. King, 155 Mo. l. c. 425.
The plaintiff is the owner of land near defendant's line of railway. The petition is in two counts. In the first he charges that the land was overflowed in consequence of defendant's construction of its road over the bed of the branch. In which construction an iron pipe was placed for the water to pass through and the bed of the said road made solid around the pipe. That this pipe was too small for the free discharge of water resulting from ordinary rainfalls. Furthermore, that defendant permitted weeds, cornstalks, fence rails and other debris, which was washed down and found lodgment in the pipe, to remain there and thereby dam up the water. In consequence of these things plaintiff's land was overflowed.
The second count charged a failure to dig and construct lateral ditches as required by law, whereby plaintiff's land might have been...
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Kendrick v. Harris
...the jury facts that were not in evidence. Sallee v. McMurray, 113 Mo.App. 253; Willis v. L. H. & Power Co., 111 Mo.App. 580; Chambers v. Railroad, 111 Mo.App. 609; Wallack v. Transit Co., 123 Mo.App. 160; v. Railroad, 118 Mo.App. 239; State ex rel. v. Dickman, 124 Mo.App. 653; Feddick v. St......
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