Morris v. Missouri Pac. Ry. Co.

• Decision Date: 29 March 1909
• Citation: 136 Mo. App. 393,117 S.W. 687
• Parties: MORRIS v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

117 S.W. 687

136 Mo. App. 393

MORRIS v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

March 29, 1909.

1. WATERS AND WATER COURSES (§ 76)—ACTIONS— SUFFICIENCY OF EVIDENCE.

In an action for injury to land by the discharge of sewage in a creek which ran through the land, evidence held to sustain a finding that the land possessed a value for building purposes greatly in excess of its value for agriculture, which value the sewage destroyed, to plaintiff's damage of not less than $100 per acre.

2. APPEAL AND ERROR (§ 979)—DISCRETION OF TRIAL COURT—NEW TRIAL.

The appellate court will not interfere with the trial court's exercise of its discretion in granting a new trial on the ground that the verdict is against the evidence, unless that discretion is clearly abused.

3. NEW TRIAL (§ 75) — GROUNDS — VERDICT CONTRARY TO EVIDENCE — INADEQUATE DAMAGES.

A verdict is conclusive upon the amount of damages in actions for personal wrongs where there is no definite measure of damages, and the trial court cannot set it aside on the ground of inadequate damages unless the amount awarded is so inadequate as to shock the understanding, and show that the verdict resulted from prejudice or passion.

4. NEW TRIAL (§ 75) — GROUNDS — VERDICT AGAINST EVIDENCE — INADEQUATE DAMAGES.

Where there is a definite measure of damages, whether in a contract or tort action, the trial court must set aside the verdict if it is satisfied that the damages awarded are inadequate under the clear weight of the evidence.

5. WATERS AND WATER COURSES (§ 76) — MEASURE OF DAMAGES — INJURY TO PROPERTY — LAND.

In an action for damages for injury to land by the discharge of sewage in a creek which ran through it, the measure of damages would be the depreciation in the market value of the land caused by the injury.

6. NEW TRIAL (§ 75) — GROUNDS — INADEQUACY OF DAMAGES — INJURY TO PROPERTY.

In an action for damages for injury to a 54-acre tract by the discharge of sewage in a stream running through it, the evidence showed that the value of the land was destroyed thereby, except for tillage, and that other land in the immediate neighborhood had sold at greatly increased prices for building purposes, so as to make plaintiff's damage by reason of the sewage at least $100 an acre. Plaintiff recovered a verdict for $1,000. Held, that the case was one in which the trial court had a discretion in reviewing the damages awarded, and that the verdict was properly set aside for inadequacy of damages.

Appeal from Circuit Court, Pettis County; Louis Hoffman, Judge.

Action by Melvin H. Morris against the Missouri Pacific Railway Company. From an order granting a new trial after verdict for plaintiff, defendant appeals. Affirmed.

Roy D. Williams and C. D. Corum, for appellant. George F. Longan and Charles E. Yeater, for respondent.

JOHNSON, J.

This suit is for damages alleged to have been caused by the discharge by defendant of sewage from its machine shops at Sedalia into a natural water course which flows through land of plaintiff in the vicinity of the shops. The trial resulted in a verdict for plaintiff in the sum of $1,000. Afterward the court granted plaintiff a new trial on the following grounds stated in his motion:

"(4) Because the court erred in not more severely reprimanding counsel for defendant in his argument to the jury when such counsel discussed a proposition he had made in open court to have the jury go and inspect the water course on plaintiff's land and the sewage flowing thereon, which was not accepted by plaintiff, and when he further discussed the plan of the defendant and its intention to change the route of the sewer, so that the same would be removed from plaintiff's land and no longer flow over the same, notwithstanding the defendant's offer to prove such plan and intention was refused by the court during the trial, whereby the jury received an erroneous impression as to the extent of the plaintiff's damages, and have rendered a verdict influenced by the aforesaid intention and plan of defendant to remove the flow of said sewage across the plaintiff's land, which may or may not be done.

"(5) Because the verdict is against the weight of the evidence as to the amount thereof, which said amount is so grossly inadequate and unfair and contrary to the evidence as to be plainly the result of prejudice and passion.

"(6) Because four of the jurymen went in person during the trial and examined the plaintiff's land and the status and conditions thereof, with reference to the flow of sewage across the same, while the trial thereof was in progress."

Defendant appealed from the order granting a new trial.

We have reached the conclusion that, in sustaining the motion on the fifth ground, the court acted within its authority and did not abuse the discretion, with which it was invested by law. In 1904 and 1905 defendant erected and began the operation of extensive machine shops near Sedalia, which were provided with a sewer system. The waste oils and offensive matter discharged from the water-closets were emptied into a sewer, which terminated on defendant's land and emptied its contents into a natural water course. Plaintiff owned 54 acres of land near the shops. The tract is bisected by the water course, and the evidence strongly supports the contention of plaintiff that the pollution of the stream was so great and so offensive that the whole tract was rendered unfit for any but...