Cooney v. Pryor

• Decision Date: 29 April 1918
• Docket Number: No. 12602.,12602.
• Citation: 203 S.W. 630
• Parties: COONEY v. PRYOR et al.
• Court: Missouri Court of Appeals

203 S.W. 630

COONEY v. PRYOR et al.

No. 12602.

Kansas City Court of Appeals. Missouri.

April 29, 1918.

On Motion for Rehearing, May 20, 1918.

Appeal from Circuit Court, Carroll County; Frank P. Divelbiss, Judge.

"Not to be officially published."

Action by John Cooney against Edward Pryor and others. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded.

See, also, 203 S. W. 629.

S. J. & G. C. Jones, of Carrollton, for appellants. Fraken & Timmons, of Carrollton, for respondent.

ELLISON, P. J.

Defendant is a corporation operating a railroad through Carroll county, and plaintiff is an owner of land which adjoins a portion of such railway. This action is based on a failure of defendant to construct drainage ditches along the side of the roadbed, as required by section 3150, R. S. 1909, whereby plaintiff's land was overflowed and his crops destroyed. There was a judgment for plaintiff in the circuit court.

It was a part of defendant's defense that the rains and the overflow were of such unprecedented and overwhelming character as to be the act of God, and that the damage to plaintiff's crops would have occurred regardless of drainage ditches. Upon this state of the record defendant attacks the first instruction given for plaintiff. It is insisted that such instruction purports to cover the whole case and direct a verdict without including a hypothesis of these defenses. Where such matters are not a part of plaintiff's case, and are omitted from his instruction purporting to cover the whole case, the omissions may be cured by those for defendant. Such has been the rule ever since Owens v. Railway Company, 95 Mo. 109, 8 S. W. 350, 6 Am. St. Rep. 39, was decided; Wingfield v. Railroad, 257 Mo. 347, 361-363, 166 S. W. 1037; Lange v. Railroad, 208 Mo. 458, 477, 106 S. W. 660. We discussed the question in Riegel v. Biscuit Co., 169 Mo. App. 513, 155 S. W. 59, and again in Barnard v. Brick & Coal Co., 189 Mo. App. 417, 423, 176 S. W. 1108. But the matters omitted were a part of plaintiff's case, and it is in those instances in which there is omitted from an instruction for plaintiff some essential element in his own case, and yet a verdict is directed for him that the error will not be cured by defendant's instructions relative to the same matter. Hall v. Coal & Coke Co., 260 Mo. 351, 368, 369, 168 S. W. 927, Ann. Cas. 1916C, 375; Dameron v. Hamilton, 264 Mo. 103, 116, 174 S. W. 425.

It appears from the evidence of both plaintiff and defendant that "large amounts of water fell and accumulated on plaintiff's land." The law is that defendant's duty does not require it to ditch against extraordinary and unprecedented downfall of water. Ellet v. Railroad, 76 Mo. 518, 534; James v. Railroad, 69 Mo. App. 437; Sherwood v. Railroad, 187 S. W. 260. We quote from the Supreme Court in the Ellet Case, the following as being fully applicable to plaintiff's instruction No. 1 in this case:

"The * * * instruction given for the plaintiff follows the language of the statute without any explanation whatever of its meaning, and would naturally be construed by the jury to require the defendant to construct ditches sufficient to carry off all the surface water which might at any time and under any circumstances be collected on the sides of the roadbed; and the jury were, therefore, in effect told, that if the defendant failed to construct a ditch sufficient to carry off all the water which accumulated in the pond on the night in question, and the track was thereby injured, and the death of Ellet resulted therefrom, the defendant is liable."

In this condition of case the error was not cured by other instructions. Authorities supra.

An examination of the record has convinced us that it would not have been proper to have declared, as a matter of law, that ...