Emery v. St. Louis & S. F. R. Co.

• Decision Date: 06 June 1910
• Citation: 129 S.W. 44,144 Mo. App. 523
• Court: Missouri Court of Appeals
• Parties: EMERY v. ST. LOUIS & S. F. R. CO.

129 S.W. 44

144 Mo. App. 523

EMERY v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

June 6, 1910.

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

A verdict on conflicting evidence will not be disturbed on appeal.

2. RAILROADS (§ 106) — DITCHES — SURFACE WATER — STATUTES.

Rev. St. 1899, § 1110 (Ann. St. 1906, p. 961), as amended, requiring railroads to provide ditches to drain off water obstructed by their railroad grades, is an innovation on the common law as to surface water, and requires a railroad company to dig lateral ditches on each side of its right of way where necessary to afford an outlet for surface water flowing from adjoining land.

3. CONSTITUTIONAL LAW (§ 42) — CONSTITUTIONAL QUESTION — RIGHT TO RAISE.

Where plaintiff's claim to recover a penalty for a railroad's failure to construct drainage ditches, as required by Rev. St. 1899, § 1110 (Ann. St. 1906, p. 961), was expressly withdrawn from the jury's consideration, defendant could not assert on appeal that the statute was unconstitutional, in that it imposed a penalty on defendant.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Henry C. Emery against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 135 Mo. App. 628, 116 S. W. 491.

W. F. Evans and James Orchard, for appellant. David W. Hill and Ernest A. Green, for respondent.

NIXON, P. J.

This was an action under section 1110, Rev. St. 1899 (Ann. St. 1906, p. 961), concerning railroad companies, and was instituted by the respondent against the appellant for damages caused to his growing crops by reason of the failure of appellant to dig lateral ditches on each side of its roadbed so as to afford a sufficient outlet to drain off the water. Upon trial before a jury, respondent obtained a verdict and the case is here on defendant's appeal.

The evidence of the plaintiff tended to support all the material allegations of his petition. He introduced evidence to show: That during the years 1905, 1906, and 1907 he was the owner of the S. E. ¼ of the S. W. ¼ of section 36, township 25, range 6 E., in Butler county, Mo. That during said time defendant maintained and operated its railroad along and adjoining plaintiff's farm, and that said railroad had been completed and in operation more than three months prior to the 1st day of January, 1905. That the construction and maintenance of said railroad from a point adjoining plaintiff's farm southwest to Little Raft slough obstructed large quantities of water, and caused the same to run across and stand upon plaintiff's land during the said years, preventing the cultivation of the land, and injuring the crops of corn growing thereon. That said injury was caused by the failure of the defendant to construct suitable ditches and drains along the sides of its roadbed from a point adjoining plaintiff's farm to Little Raft slough. The evidence was conflicting as to whether it was practicable to construct drains and ditches over this route, and whether, if constructed, they would carry the water off which had accumulated by reason of the construction and maintenance of the railroad. The evidence of E. C. Nickey for the plaintiff was that he was the county surveyor of Butler county and the city engineer of Poplar Bluff, that the defendant's railroad at Emery's farm and on down to Little Raft slough was constructed on an embankment about 2½ or 3 feet high, and that there were no ditches or drains on either side of the railroad that would carry off the...