Jones v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1884
• Parties: JONES v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

84 Mo. 151

JONES

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Butler Circuit Court.--HON. R. P. OWEN, Judge.

REVERSED.

Bennett Pike for appellant.

(1) The trial court committed error in refusing the demurrer to the evidence as asked by defendant. Clark's adm'r v. R. R., 36 Mo. 202; Brainard v. Clapp, 10 Cush. 6. (2) The instruction given for plaintiff was erroneous. Clark's adm'r v. R. R., supra. The instruction was also erroneous in its declaration as to the measure of damages in the event of recovery. Interest is not recoverable in a case of this kind. Wade v. R. R., 78 Mo. 365; Kenny v. R. R., 63 Mo. 99. (3) The court erred in refusing to give instruction number two, asked by defendant. McCormick v. R. R., 57 Mo. 438. (4) The court, under the authorities above cited, also erred in refusing instructions numbers three and four, as asked by defendant.

C. D. Yancey for respondent.

(1) The remittitur of interest before judgment was entered obviates any objection in that regard. Weston, etc., v. Kubben, 48 Mo. 37; Wade v. Railroad, 78 Mo. 362. (2) It was the duty of defendant to open ditches or drains through its embankment so as to afford egress for the water it had caused to flow upon plaintiff's cultivated land. Sec. 810, R. S., 1879. McCormick v. Railroad, 57 Mo. 433; Illinois Central Ry. Co. v. Grabill, 50 Ill. 341; Bradley v. Railroad, 21 Conn. 294; Waffle v. Railroad, 58 Barbour 413; Kaufman v. Griesemer, 26 Pa. St. 407. The attempt to justify the wrong by urging the chartered privileges of defendant is fully and clearly explained by the rules laid down in McCormickv. Kansas City, St. Joe & Council Bluffs Ry. Co., and Bradley v. New York & New Haven Ry. Co., before cited. A railroad company must so use its own property as not to injure another. 50 Ill. 341, supra.

NORTON, J.

This is an action for damages in which plaintiff recovered judgment, from which the defendant appeals and assigns for error the action of the court in refusing to instruct the jury that on the pleadings and evidence plaintiff was not entitled to recover. The cause of action stated in the petition is, in substance, that the railroad of defendant was constructed through plaintiff's land in Wayne county, in a northerly and southerly direction, leaving a portion of his land, about fifteen acres along Black river on the west, and twenty acres of cultivated land on the east side of the roadbed. That said roadbed was originally built across said land upon a solid embankment several feet high, making a dam against the high water from Black river, that in 1876, some years after the said construction of the roadbed at said point, the said embankment was washed out by high water from Black river, by which the water was admitted on the land of plaintiff. That defendant, in rebuilding said roadbed at the point where the same was broken, put in trestle work for the space of one hundred and fifty feet, through which the high water from Black river overflows on plaintiff's land and spreads over plaintiff's land on the east, and renders fifteen acres of the same valueless.

The answer of defendant, in substance, was a special denial and a special plea of a right to construct its railway through said county of Wayne, and the construction of said railroad through said county and over the land of plaintiff therein, by virtue of the acquisition of a right of way, duly granted by the owner of said land in a proper manner, and the rebuilding of a portion of the same in 1876, and the putting in of a trestle in the place of an embankment for the space of one hundred and fifty feet, in a proper manner, and as the result of a change being necessary, in order to protect its roadbed against destruction by the recurrence of extraordinary high water in Black river, which runs along the roadbed some distance to the west.

The testimony of the plaintiff was to the effect that, whenever Black river overflows, the water runs through the trestle to the east and overflows plaintiff's land, and runs down into a low piece of ground about three hundred yards below the trestle, where, on account of the embankment of the railroad it cannot flow back to Black river, but spreads out over about fifteen acres of plaintiff's land, rendering it useless for cultivation. The testimony of defendant's civil engineer, Bartlett, showed that the railroad was built through plaintiff's land in 1872 and 1873, upon an embankment several feet high, and that in 1876, in consequence of a great rise in Black river, the embankment was washed out, and that in rebuilding it, it became necessary to put in trestle work in place of the embankment, as no embankment,...