Moore v. St. Louis Southwestern Ry. Co.

• Decision Date: 06 February 1957
• Docket Number: No. 7511,7511
• Citation: 301 S.W.2d 395
• Parties: Harve MOORE, Plaintiff-Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 395

301 S.W.2d 395

Harve MOORE, Plaintiff-Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a corporation Defendant-Appellant.

No. 7511.

Springfield Court of Appeals, Missouri.

Feb. 6, 1957.

Jones & Jones, Kennett, Blanton & Blanton, Sikeston, for appellant.

McHaney & McHaney, Hal H. McHaney, Flake L. McHaney, William H. Billings, Kennett, for respondent.

McDOWELL, Presiding Judge.

This appeal is from a verdict and judgment of the Circuit Court of Dunklin County, Missouri, in favor of plaintiff and against defendant, St. Louis Southwestern Railway Company, a corporation, in the sum of $1,216.50 damages to cotton crop caused by negligence of defendant spraying its right-of-way with 'Herbicidal Oil No. 6'.

The petition alleged: '* * * that on the 18th and 19th days of August, 1954, * * *

'* * * the defendant acting by and through its agents, servants and employees did spray the weeds and vegetation along and upon its railroad right of way in the vicinity of the lands of the plaintiff with a weed poisoner and did cause said weed poison to wrongfully invade the said premises of the plaintiff and damage and destroy a large part of his said cotton crop; that said defendant did negligently permit and cause said weed poison to spread over the crop of plaintiff as aforesaid by so spraying its right of way when the wind was so blowing as to cause said poison to float onto plaintiff's crop of cotton and did greatly damage and destroy his said crop of cotton.'

Defendant's answer was a general denial.

It is plaintiff's theory that the damage to his cotton crop was the result of defendant's negligence in spraying its right-of-way with weed poisoning during a high wind, which carried the spray and material into and over plaintiff's cotton crop. The defense was, that whatever damage, if any, plaintiff suffered to his cotton crop, was due to weather conditions and growing season of 1954, and, not to damage caused by defendant in spraying its right-of-way.

In our opinion we will refer to appellant as defendant and respondent as plaintiff, positions occupied in lower court.

Defendant first assigns as error the action of the trial court in overruling its motion for directed verdict at the close of plaintiff's case and at the close of all the testimony. It contends that the evidence discloses uncertainty as to the cause of damage, if any, to plaintiff's cotton and that there is no substantial evidence to show any alleged damage to plaintiff's cotton was due to spraying; or, how much damage, if any, with any reasonable degree of certainty, was due to the spraying by defendant.

Where a cause is tried by jury this court is bound by the jury's findings of facts, if there is substantial evidence to support the verdict. Pettit v. United Benefit Life Insurance Co., Mo.App., 277 S.W.2d 857, 862; Machens v. Machens, Mo.Sup., 263 S.W.2d 724, 734; White v. Barkovitz, Mo.App., 254 S.W.2d 291, 294.

Only where there is a complete absence of probative facts to support the conclusion reached does reversible error appear. But where there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. Winters v. Terminal R. Ass'n of St. Louis, 363 Mo. 606, 252 S.W.2d 380, 384; West v. St. Louis-San Francisco Railway Co., Mo.Sup., 295 S.W.2d 48.

The last cited case states the law that where the defendant assigns as error the court's refusal to direct a verdict for defendant, Supreme Court in considering assignment would state the evidence favorable to plaintiff and disregard defendant's evidence, unless it added to plaintiff's case. Williamson v. St. Louis Public Service Co., 363 Mo. 508, 252 S.W.2d 295.

The law is that defendant, railroad company, had the legal right to use beneficial sprays to eliminate weeds on its right-of-way, if used in a reasonable manner, but such preventative measures cannot be used with absolute impunity; due care must be exercised to prevent the spray from drifting on and damaging crops of others. In other words, defendant owed a duty to plaintiff, while spraying its right-of-way, to avoid using such spray at a time when the wind was blowing to an extent that it would carry the spray over plaintiff's cotton crop in such quantities as to injure the same. Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289.

The evidence, stated most favorable to plaintiff, shows that defendant's railroad running from southeast to northwest passes through Hornersville, Dunklin County, Missouri; that plaintiff's 80 acres of land, on which the cotton in question was growing in 1954, lies directly north of defendant's right-of-way, less than one-eighth of a mile; that the farm buildings and grape arbor, mentioned in evidence, are located in the southeast corner of plaintiff's land on a blacktop highway forming the south boundary; that a gravel street extends from near the southeast corner of the 80 acres to and crosses defendant's right-of-way on the east side of the town, about a block east of the depot; that Leachville Junction lies west of the gravel intersection, about three-fourths of a mile. At this junction one main branch of defendant's tracks goes in a southwest direction to Leachville and a main branch goes in a northwest direction to Paragould.

There is no dispute that between the hours of 6:00 and 7:00 o'clock, p. m. on August 18th, defendant sprayed its right-of-way coming from the east up to and stopping at the junction of the gravel road or street with its right-of-way, about a block east of the depot in the east part of town; that the spray used was a 'Herbicidal oil No. 6', manufactured by Lion Oil Company. The oil was mixed with water in proportion of one and one-fourth gallons to one gallon of oil, and an emulsifier, and, was applied on the right-of-way through spraying nozzles at the rate of 160 gallons of oil per mile under 60 pounds of pressure. Defendant used a spray car followed by a car of chemicals and a car of water. The nozzles were attached to the booms on the front of the spray car. The booms that cross the center of the track over the crossties are stationary. Those on each side of the track are movable, up or back. The water and chemicals are pumped through a series of hoses by a Ford motor and mixed under pressure and forced through the nozzles located along the booms. The booms in the center of the track are 12 to 14 inches above the rail. The other booms go out straight and if the dump is above the ground elevation the height above the ground would vary with the height of the berm at the toe of the shoulder of the enbankment. It is admitted that the track elevation on the east side of the town is 10 or 12 feet higher than the ground level and 2 feet higher at Leachville Junction.

Some 23 witnesses testified for plaintiff. Most of the testimony was uncontradicted. We will state only the substance of this testimony. It shows that when the spray train reached the gravel junction in Hornersville, between 6:00 and 7:00 o'clock p. m., on August 18th, the spray was fogging up on both sides of the track; one witness stated from 10 to 12 feet high. That the spray continued 5 or 10 minutes after the engine stopped at the junction; that at the time of the spraying the wind was blowing from the south toward plaintiff's land; one witness said 'pretty strong', and another said 'between 20 and 30 miles per hour'. Witnesses, Stone and Pierce, who lived on adjoining lots on the gravel street between plaintiff's farm and the right-of-way, some 200 to 250 feet north from where the train stopped spraying, and, some 250 yards from plaintiff's southeast corner, testified that the odor from the spray was so strong they had to go into their homes. Stone said that about 8:00 or 9:00 o'clock of the same evening, he went to plaintiff's home to get some turkeys; that while there he smelled the same odor, but not so strong, as he smelled at home from the spray.

The testimony further shows that between the hours of 7:30 and 8:00 a. m., August 19th, defendant's spray train started spraying at Leachville Junction on its Main line southwest to Leachville; that at that time witness Heathington, a farmer who was disking cotton rows within 10 or 15 feet of the right-of-way, testified that the spray was fogging up as high as the boxcar and that there was a strong wind blowing from the south or southwest toward plaintiff's field. In the afternoon the train backed up from Leachville and sometime between 5:00 and 6:30 o'clock p. m., started spraying its right-of-way on its main line running northwest to Paragould. Some of the witnesses said it was just before sundown and some said it was about 15 minutes before the wind and rainstorm struck the vicinity. We think the evidence is undisputed that the wind was blowing hard on the 19th, some witnesses stated between 15 and 25 miles per hour, some said 35 miles per hour; admittedly, the wind was blowing harder than it had been through the day at the time of the rainstorm and defendant's evidence is that the train was some 16 miles from Leachville Junction at the time of the storm.

It is undisputed that the right-of-way from the gravel junction on the east side of the town, a distance of some three-fourths of a mile to Leachville Junction was burned off and not sprayed.

Plaintiff's testimony, from many witnesses, was to the effect that they had observed plaintiff's cotton prior to the date of spraying on the 18th and 19th of August and prior to the wind and rainstorm; that the cotton was in good growing condition and green, both bolls and leaves; that these witnesses were called in by plaintiff, many of them, all the way from two days after the spraying until September 8th, and found the leaves and bolls in the top of the stalks were dying; one witness said 'crimped up'; that this condition was generally all over the 62 acres of cotton, except just north of the buildings, fences and grape arbor...