Ogle v. Terminal R. R. Ass'n of St. Louis

• Decision Date: 09 March 1976
• Docket Number: No. 36349,36349
• Citation: 534 S.W.2d 809
• Parties: Lexton OGLE et al., Plaintiffs-Appellants, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Defendant-Respondent. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 809

534 S.W.2d 809

Lexton OGLE et al., Plaintiffs-Appellants, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Defendant-Respondent.

No. 36349.

Missouri Court of Appeals, St. Louis District, Division Four.

March 9, 1976.

Lawrence O. Willbrand, St. Louis, for plaintiffs-appellants.

Robertson, Ely & Wieland, Robert C. Ely, St. Louis, for defendant-respondent.

ALDEN A. STOCKARD, Special Judge.

This is an action in twenty-four separate counts by landowners for damages from flooding claimed to have been caused by defendant's failure to comply with the minimum requirements of § 389.660, RSMo 1969, pertaining to the construction of suitable openings in the roadbed of a railroad to drain and carry off water. The jury verdict, totaling $12,000.00, was set aside by the trial court and judgment was entered for defendant in accordance with its motion for a directed verdict. In the alternative, the trial court ordered a new trial for the giving of Instruction No. 6 on the issue of damages. Plaintiffs have appealed. We reverse the judgment for defendant but affirm the order granting a new trial.

Among other things § 389.660 requires that every railroad company shall 'cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad, * * * to connect with ditches, drain and watercourses, 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 such railroad; * * *.' Each flooding of lands resulting from noncompliance with the above statute gives rise to a separate cause of action. Hewitt v. Chicago, Burlington & Quincy Railroad Company, 426 S.W.2d 27, 29 (Mo.1968).

Plaintiffs contend that the trial court erred in setting aside the jury verdict and entering judgment for defendant railroad. In determining this issue we consider the evidence favorable to plaintiffs as true and give them the benefit of every inference of fact which can reasonably be drawn therefrom. Adler v. Laclede Gas Company, 414 S.W.2d 304, 306 (Mo.1967).

During the trial of this case plaintiffs' expert witness, a civil engineer for the Metropolitan Sewer District, referred to an exhibit while testifying. The exhibit has not been filed with this court. Statements by this witness that 'this part here is looking at the view of the creek from the side,' the 'creek flows this way,' and the 'railroad is right here,' are meaningless to one reading the record on appeal. We shall, however, from the understandable evidence make a summary statement of the factual situation, and detail the pertinent evidence.

Defendant's railroad right of way crosses the East Fork of Black Creek near Hanley Road and Laclede Station Road. The culvert in defendant's embankment to permit water in the East Fork of Black Creek to pass through is ten feet wide across the bottom, it has vertical concrete walls six feet high, and there is an arch or 'round half circle' at the top. Plaintiffs' home is nearby on West Point Drive a short distance upgrade from the culvert.

Lexton Ogle testified that the 'creek,' referring to the East Fork of Black Creek, was across the street from his house, and when 'you get a hard rain you see the creek come up and you watch it and it just comes up and gets to the culvert and starts backing up this way right towards our house.' He also testified that on several occasions the water overflowed from the creek into the basement of his house causing damage. Other evidence was to the effect that on twenty-four occasions their basement was flooded by water which during heavy rains backed up from the culvert. Plaintiffs' expert witness testified that in his opinion the reason the water backed up into plaintiffs' home was that 'the culvert (was) too small,' and that it was 'only one-third the size it should be' in order to permit the flow of the water through the embankment.

Defendant's evidence was to the effect that if it enlarged the culvert that 'would not alleviate the situation' because 'the whole channel is inadequate from the Terminal Railroad on downstream.'

Rather than attempt to paraphrase the ruling in Smithpeter v. Wabash R. Co., 360 Mo. 835, 231 S.W.2d 135, 141--142 (1950), a leading case on the issues here presented, we will quote rather extensively from the opinion as follows:

We next consider defendant's basic contention as to its construction of Sec. 5222, * * *. Defendant argues that as plaintiffs failed to prove that 'there was ditches, drains or watercourses south of the railroad embankment sufficient to carry of the water, including surface water, coming through defendant's embankment,' that plaintiffs made no case for the jury. Defendant's brief states its position in these words: '* * * the duty of the railroad under Sec. 5222 is limited to passing only that water through the embankment which can be carried off by a ditch, drain or watercourse below.'

We do not agree that a railroad's duty is so limited under that statute. Analysis of the statute discloses nothing therein which limits the railroad's duty to passing through its embankment only such water as can be carried off below. In Sec. 5222, we find neither words nor...