Jones v. Chicago, B. & Q. R. Co.

• Decision Date: 21 February 1939
• Docket Number: 35383
• Citation: 125 S.W.2d 5,343 Mo. 1104
• Parties: J. W. Jones v. Chicago, Burlington & Quincy Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

125 S.W.2d 5

343 Mo. 1104

J. W. Jones v. Chicago, Burlington & Quincy Railroad Company, a Corporation, Appellant

No. 35383

Supreme Court of Missouri

February 21, 1939

Appeal from Scotland Circuit Court; Hon. Walter A. Higbee Judge.

Affirmed.

J A. Lydick and Sullivan, Reeder & Finley for appelant; J. C. James of counsel.

(1) Fox Slough was not a natural watercourse. Jones v. Railroad Co., 100 S.W.2d 626; Drainage District v. Railroad Co., 280 Mo. 254. (2) Overflow water is a common enemy which any landowner may ward off his premises. Goll v Railroad Co., 271 Mo. 666. (3) Revised Statutes 1929, section 4765, is without application because: (a) The plaintiff's lands were up Fox River and across the same from the defendant's embankment. Hutchings v. Railroad Co., 224 Mo. 1124. (b) Active overflows are not within the statute. (c) The enactment is for the benefit and protection of adjoining landowners only. R. S. 1929, sec. 4765. (4) Overflow water being a common enemy, the defendant was not obliged to build its bridge so as to remove it. (5) The upper proprietor has no flowage rights in a stream except within its natural channel, and its natural capacity. Cubbins v. Commission, 241 U.S. 368; Anderson v. Drainage Dist., 309 Mo. 204; 67 C. J. 686. (6) The defendant had the right, if necessary in the construction of its road, to obstruct the natural capacity of a natural watercourse, being obliged at that time and once for all to the then landowner, and not to subsequent casual tenants, for damages to lands subjected by such construction to overflow; and these damages the then owner might have at once recovered if he was not duly compensated. R. S. 1929, sec. 4655; 20 C. J. 684; Powers v. Railroad Co., 158 Mo. 102; Clark v. Railroad Co., 36 Mo. 224; Abbott v. Railroad Co., 83 Mo. 279. (7) The flood of 1933 was shown by the testimony offered by both the parties to have been so unusual and extraordinary that, regardless of other considerations, the defendant owed no duty to the plaintiff with respect to the same. Flori v. St. Louis, 69 Mo. 342; Haney v. Kansas City, 94 Mo. 337; Powers v. Ry. Co., 158 Mo. 101; Coleman v. Ry. Co., 36 Mo.App. 493; Harris v. Ry. Co., 224 Mo.App. 459; 1 C. J. 1177. (8) The efficient cause of the destruction of plaintiff's crops was water coming down Fox River, and not water backed up by the defendant's bridge or embankment. Jones v. Ry. Co., 100 S.W.2d 626.

Rendlen, White & Rendlen, B. F. Jones and Luther & Luther for respondent.

(1) This case is duly certified here under Section 6 of the Amendment of 1884 to Missouri Constitution, which provides: "Thereupon the Supreme Court must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process." (a) "When a case is certified to the Supreme Court by the Court of Appeals within the time, in the manner and for the reason that the decision is in conflict with the decision of some other appellate court, it is not an open question in the Supreme Court as to whether such conflict does in fact exist, but the Supreme Court will hear and determine the same as if jurisdiction had been obtained by ordinary appellate practice." Black v. Guarantee Co., 316 Mo. 278, 290 S.W. 434; City v. Benecke, 289 Mo. 307, 233 S.W. 169; Williams v. Ry. Co., 288 Mo. 11, 231 S.W. 954; Hayes v. Ice Co., 282 Mo. 446, 221 S.W. 705; Epstein v. Ry. Co., 250 Mo. 1, 156 S.W. 699; State v. Clinkenbeard, 232 Mo. 539, 134 S.W. 537; Cento v. Security Bldg. Co., 99 S.W.2d 1. (b) "Upon a transfer of a cause from a Court of Appeals on the ground that one of the judges deems the decision to be in conflict with some previous decision of the Supreme Court or another Court of Appeals, the Supreme Court has complete jurisdiction, just as if the case had never been considered by the Court of Appeals." Keller v. Summers, 262 Mo. 324, 171 S.W. 336; Robertson v. Robertson, 270 Mo. 137, 192 S.W. 988; Hayes v. Ice Co., 282 Mo. 446, 221 S.W. 705; Williams v. Ry. Co., 288 Mo. 11, 231 S.W. 954; Geninazza v. Storage Co., 252 S.W. 417; Berberet v. Amusement Co., 319 Mo. 275, 3 S.W.2d 1025; Cash v. Sonken, 17 S.W.2d 927. (2) Where plaintiff has a verdict, as here, then in ruling on demurrer to evidence, appellate courts accept plaintiff's evidence as true, and assume defendant's evidence as false, where contradicted by plaintiff's proof. Plaintiff is allowed every reasonable inference of fact arising in his favor or any of the substantial proof. The appellate court is bound by the finding of the jury in a legal action where the evidence is conflicting, or where there is any evidence to sustain it, or where the evidence will support different inferences, one favorable to successful party in trial court, will be adopted and stated as the fact. Tranbarger v. Railroad Co., 250 Mo. 57; Temple v. Railroad Co., 83 Mo.App. 69; Hayes v. Railroad Co., 264 S.W. 684; Whitaker v. Railroad Co., 252 Mo. 452; St. Louis v. Railroad Co., 248 Mo. 10; Gilkey v. Woodmen of World, 178 S.W. 875; Bartlett v. Garrett, 188 Mo.App. 144, 175 S.W. 79; Davidson v. Dunham, 183 S.W. 690, Kelley v. Ross, 165 Mo.App. 479. Recent cases by the Supreme and this court so holding are: Montria v. E. St. Louis Ry. Co., 76 S.W.2d 427; Rexford v. Philippi, 84 S.W.2d 628. (a) The Court of Appeals is an appellate tribunal and has nothing to do with the weight of the evidence. Even if appellate court believed verdict was against weight of the evidence, it cannot remand a case for such reason. Temple v. Railroad Co., 83 Mo.App. 69; Tranbarger v. Railroad Co., 250 Mo. 57; Madden v. Railroad Co., 167 Mo.App. 153; Silverthorne v. Lumber Co., 190 Mo.App. 716; Montria v. E. St. Louis Ry. Co., 76 S.W.2d 427; Rexford v. Philippi, 84 S.W.2d 628. At appellant's request the court gave its Instruction 14, stating: "The jury are the sole judges of the credibility of witnesses and of the weight and value. You will attach to their testimony. . . . It is your province to give each witness such weight and value as you may deem proper." (b) "On demurrer to evidence, court should state facts and reasonable inferences most favorable to plaintiff." Any person, landowner or tenant or otherwise may recover if he suffers damage on account of the railroad failing to perform this duty. Violation of the statute is negligence per se. The statute says: "Any corporation . . . failing to comply with the provisions shall . . . be liable for all damages done by said neglect of duty." The damages are not limited to landowners only. Sec. 4654, R. S. 1929. (c) Tenant or share cropper may maintain action under this statute for loss of his crop, or his interest, or share in it. Wilkerson v. St. L. & S.W. Ry. Co., 224 S.W. 72; Van Hoozier v. Ry. Co., 70 Mo. 149.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

The appeal in this case was first lodged in the St. Louis Court of Appeals, the amount of the judgment being within the appellate jurisdiction of that court. Two opinions were there written. The first, by Bennick, C., affirmed the judgment of the circuit court. On rehearing that opinion was withdrawn and an opinion written reversing said judgment. On motion for rehearing, Becker, J., withdrew his concurrence and dissented, deeming the decision in conflict with Tranbarger v. Chicago & Alton Railroad Co., 250 Mo. 46, 156 S.W. 694, and upon his request the case was certified to this court. The second opinion of the Court of Appeals is reported in 100 S.W.2d 617. After careful examination of the voluminous record we think the statement of facts in the first opinion of the Court of Appeals and the conclusions of law therein set forth are substantially correct and we borrow largely therefrom in disposing of the case here.

The action is in three counts, by which plaintiff, J. W. Jones, a crop-sharing tenant farmer upon certain lands located in Clark County, Missouri, seeks to recover from the defendant, Chicago, Burlington & Quincy Railroad Company, for the damage done to his growing crops by overflows alleged to have resulted from the negligent and wrongful failure of defendant to maintain suitable and adequate openings and outlets across and through its right of way so as to permit the drainage and escape into the Mississippi River of the high water carried in the streams which flow into and through the general territory in which plaintiff's farming operations were conducted.

There is some dispute in the case as to whether the action was founded merely upon certain specific acts of negligence charged in the petition, or upon the theory of a violation by defendant of the provisions of Section 4765, Revised Statutes 1929 (Mo. Stat. Ann., sec. 4765, p. 2158), which makes it the duty of every company owning or operating a railroad in this State to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad 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 the railroad. Defendant contends for the former theory of the case, and plaintiff for the latter.

The case was taken on change of venue from the Circuit Court of Clark County to the Circuit Court of Scotland County, wherein, upon a trial to a jury extending over a period of more than three weeks, a verdict of ten jurors was returned in favor of plaintiff, and against defendant, in the aggregate sum of $ 1703. Judgment was rendered accordingly and defendant appealed.

The lands farmed by plaintiff and upon which his losses occurred are located within the limits of what is known as the Mississippi and Fox River Drainage District No. 1 in Clark County,...