Chapman v. St. Louis Belt & Terminal Ry. Co.

• Decision Date: 29 February 1912
• Citation: 144 S.W. 469,240 Mo. 592
• Parties: CHAPMAN et al. v. ST. LOUIS BELT & TERMINAL RY. CO.
• Court: Missouri Supreme Court

144 S.W. 469

240 Mo. 592

CHAPMAN et al. v. ST. LOUIS BELT & TERMINAL RY. CO.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

1. APPEAL AND ERROR (§ 1002) — VERDICT — CONCLUSIVENESS — CONFLICTING EVIDENCE.

A verdict upon conflicting evidence is conclusive on appeal.

2. EMINENT DOMAIN (§ 243) — COMPENSATION — INJURY TO PROPERTY.

Since the damages awarded for taking land for a railroad right of way under Const. art. 2, § 21, prohibiting private property from being taken or damaged for public use without just compensation, would include those reasonably flowing from the construction of the road, whether present or future, a landowner, a part of whose land was condemned for a railroad right of way and who then recovered damages for the land so taken and damaged, could not afterwards recover for injury to his land by its caving in because of the nonnegligent excavation by the company of the adjacent roadway condemned.

3. APPEAL AND ERROR (§ 1056) — HARMLESS ERROR — EXCLUSION OF EVIDENCE.

Where plaintiffs were not entitled to recover in any event, error in excluding evidence going to the measure of damages was not prejudicial.

Appeal from Circuit Court, St. Louis County; J. W. McElhenny, Judge.

Action by Henry Chapman and others against the St. Louis Belt & Terminal Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

This is a suit brought by the plaintiffs against the defendant to recover $25,000 damages sustained by them through the alleged negligence of the latter in grading its right of way along and adjacent to their property, and thereby causing it to cave in.

The facts are few, and most of them are undisputed. They are as follows:

Some time prior to the institution of this suit, the defendant brought another suit against the plaintiffs for the purpose of condemning a strip of land through their property for its right of way. In due time the latter came on regularly for trial, and, after the commissioners heard the evidence pro and con, awarded the defendants, the plaintiffs here, the sum of $28,975, for the value of the land taken for said purpose, and for the damages done thereby to the remainder of the tract not taken. Shortly after the trial of the former case, the defendant here took possession of the said strip of land, and graded it for the purposes of its right of way. In the present suit the plaintiffs charge that the defendant so negligently graded the strip that the banks on the sides thereof caved in, and carried with them large portions of their land and soil, to their damage in the sum of $25,000. The answer of the defendant denied the charge of negligence, and affirmatively alleged that whatever damages the plaintiffs sustained, if any, in consequence of the grading, was compensated for in the previous condemnation proceedings. This new matter was traversed by a reply. The evidence for both parties showed substantially the following facts: That a proper grade or slope of the banks of the cut was from 1¼ feet horizontal to 1 foot in depth, and that, if there was still a tendency to slide, the horizontal slope should be increased in extreme cases to 2 feet horizontally to 1 foot in depth.

There was substantial evidence introduced on the part of the plaintiffs which tended to show the foregoing rules of excavation were not observed or followed by the defendant, and that it cut the banks almost perpendicular for the first 12 feet, and that much less slope than 1¼ feet to 1 was made for the remaining distance, which was about 20 feet.

Upon the other hand, the defendant introduced equally credible evidence, it seems to us, tending to contradict the evidence introduced by appellants; and also to show that in excavating the cut the railway company left a slope for the banks thereof of from 1½ to 2 feet horizontal to 1 foot in depth. The evidence for the defendant also tended to show that there was no sliding or caving of the banks during the course of the excavation, but that near the bottom of the cut there was what is called a bed of shale or joint clay, to which subsequently thereto, during wet weather, water seeped through the upper soil and flowed over the surface of the shale, and thereby caused the latter to become greasy like or slippery, and caused the former to slide and cave into the excavation. In rebuttal, the evidence for appellants tended to show that by the exercise of ordinary care, and by the expenditure of a reasonable sum of money by the company, the latter condition could have been remedied by driving piles near the bottom of the cut, and filling in behind them with brickbats, or other materials of similar character, and by planting trees thereon. The evidence of defendant tended to contradict the feasibility of the latter scheme.

At the close of the introduction of all the evidence, the court at the request of the defendant, and over the objections of plaintiffs, gave to the jury the following instructions, viz.:

"(3) The jury are instructed that, if you believe and find from the evidence that defendant St. Louis Belt & Terminal Railway Company exercised ordinary care in erecting, constructing, and digging the cut for the establishment and construction of its roadbed, then your verdict must be for the defendant and against the plaintiffs, even though you further find and believe from the evidence that the plaintiffs' land cracked open on the north, sloughed off, and caved in to plaintiffs' damage.

"(4) The court instructs the jury that the defendant St. Louis Belt & Terminal Railway Company, leave being duly had, on the 29th day of October, 1904, applied to the circuit court of St. Louis county, Mo., by a petition setting forth the general directions in which it was desired to construct its road, together with the description of the plaintiffs' land, and prayed therein for the appropriation, for the purpose of constructing, maintaining, and operating with all convenient speed its railroad, and for the purpose of cutting embankments necessary for the proper construction of said road, a strip of land on the south side of plaintiffs' land 210 feet wide, which said strip was 135 feet...