Owen v. The Chicago, Rock Island & Pacific Railway Company
| Decision Date | 07 November 1904 |
| Parties | ROBERT L. OWEN, Respondent, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Mercer Circuit Court.--Hon. P. C. Stepp, Judge.
AFFIRMED.
Judgment affirmed.
M. A Low, Frank P. Sebree and H. C. McDougal for appellant.
(1) The court committed error in refusing to give the demurrer to the evidence and instruction numbered 1 in the nature of a demurrer to the evidence, both requested by the defendant. Abbott v. Railroad, 83 Mo. 271; Fick v Railroad, 157 Pa. 622, 626; Emery v. Railroad, 102 N.C. 209; Trust Co. v. Railroad, 57 F. 441. (2) The court committed error in the admission of evidence on the part of the plaintiff. (3) The instructions given for plaintiff are erroneous in the respects mentioned about the evidence. Authorities above cited. (4) The damages for restoring fences and land were special damages and should have been specially pleaded. 1 Chit., Pl. (10 Am. Ed.), 3956; Dumont v. Smith, 4 Denio 319; State v Blackman, 51 Mo. 319; 3 Sutherl., Dam., 426-7. (5) For the errors in the admission of evidence, as well as in the instructions given, as above pointed out, the judgment should be reversed. All error is presumed to be harmful. Thomp., Charg. Jury, sec. 130; Thatcher v. James, 31 Me. 534; Potter v. Railroad, 46 Iowa 399; State v. Shipley, 174 Mo. 516.
M. F. Robinson, E. M. Harber and Ira B. Hyde & Son for respondent.
(1) The owner of land is not estopped either by deed or assessment of damages from claiming damages caused by improper or negligent construction of a railroad bridge. 6 Am. and Eng. Ency. of Law (1 Ed.), 552; 28 Am. and Eng. Ency. of Law (1 Ed.), 966, 967, 968; Abbott v. Railroad, 83 Mo. 271; R. S. 1899, sec. 1035; Edwards v. Railroad, 97 Mo.App. 103; Harvey v. Kansas City, 94 Mo. 334; Cedar Co. v. Walker, 132 Ala. 553; Railroad v. Ramsey, 139 Ill. 9; Railroad v. Nuetzel, 43 Ill.App. 108, 59 L.R.A. 877; Brink v. Railroad, 17 Mo.App. 177. (2) In the present case the testimony clearly establishes, and is not disputed, that the obstructions complained of would have caused just such a dam to form, and resulting damage to plaintiff's crops in any ordinary overflow, such as had been of frequent occurrence. (3) It is not essential to recovery that the negligence of the defendant should be the sole cause of the damage, though it must be an efficient cause. When the act of God mingles with the negligence of defendant in causing a loss the plaintiff must show, as he does in this cause, that the negligence of the defendant was an active agent in bringing about the loss. Coleman v. Railroad, 36 Mo.App. 476; Abbott v. Railroad, 83 Mo. 271; Hartshorn v. Chaddock, 17 L.R.A. 426. (4) The measure of damages as to the crops is the market value as they were immediately before the overflow, and as to the injury to the land itself the measure may be the difference in the value before and after, or it may be the cost of restoring the land to its former condition. There has been much conflict in the decisions on this point. 24 Am. and Eng. Ency. of Law (1 Ed.), 954-7; Graves v. Railroad, 69 Mo.App. 574; Hartshorn v. Chaddock, 17 L.R.A. 426-7. (5) If the damages caused jointly by the act of God and the negligence of the defendant can not be apportioned the defendant is liable for the whole damage. Brink v. Kansas City, 17 Mo.App. 202-3; Jenkins v. Railroad, 57 L.R.A. 309; Phillips v. Phillips, 34 N. J. L. 208; Washburn v. Gilman, 18 Am. Rep. 250, 251; Salisbury v. Herchenroder, 8 Am. Rep. 354; Dickinson v. Boyle, 28 Am. Dec. 281; Hartshorn v. Chaddock, 17 L.R.A. 426.
This action was brought to recover damages to plaintiff's land, fences and crop said to have been caused by an overflow in the summer of 1903. The judgment below was for plaintiff.
Plaintiff's case is that defendant's negligence in and about the building and maintaining of one of its bridges across a stream running by his farm caused the water of a freshet in the year aforesaid to dam up and overflow his lands to an extent which would not have occurred but for the negligent obstruction at the bridge. The negligence charged consisted in building the sides of a new bridge too low; in leaving piles standing in the stream, and in allowing to remain in the bed of the stream a great length of time before and during the flood a lot of wrecked freight cars. Defendant concedes that the wreck ought not to have been left in the stream, but denies the proof of negligence in the other particulars. An examination of the evidence convinces us that there was sufficient, tending to prove all three of the charges. There was evidence from which the jury might well reasonably infer that the new bridge was built with sides too low down. Besides, defendant had the court exclude evidence that its foreman was told that he was building below ordinary highwater line. We likewise find that there was evidence tending to prove that the extra amount of overflow caused by the obstruction was the immediate cause of the injury to plaintiff's land and crops. So we need only consider objections to evidence and to plaintiff's instructions.
Defendant insists that witnesses were asked whet plaintiff's damage was and that by such mode of examination the witness was allowed to usurp the functions of the jury. The questions put to witnesses consisted of more than the mere asking the damage. That part of the questions ought not to have been asked. But, taking the whole question asked in connection with the answer of the witnesses, should the judgment be reversed for that, or is the error harmless? The questions asked directed the witness to base his estimate on the value of the crop and to deduct this from the value of the crop remaining after the flood. The answer of the witness did not state, except in one or two instances, the damage in...
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