Pace v. St. Louis Southwestern Ry. Co.

• Decision Date: 06 May 1913
• Parties: PACE et al. v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Missouri Court of Appeals

156 S.W. 746

174 Mo. App. 227

PACE et al. v. ST. LOUIS SOUTHWESTERN RY. CO.

St. Louis Court of Appeals. Missouri.

May 6, 1913.

1. RAILROADS (§ 108) — CONSTRUCTION — TRAINS — NECESSITY.

Under Rev. St. 1909, § 3150, providing that within three months after the completion of the right of way every railroad company shall cause to be constructed suitable openings through its roadbed and suitable ditches and drains along each side of the roadbed to connect with ditches, drains, or water courses so as to afford sufficient outlet to drain and carry off the water, including surface water along such railroad whenever drainage has been obstructed or rendered necessary by the construction of a right of way, the duty to construct lateral ditches exists only when there are ditches, drains, or water courses with which they will connect, but it is not essential that the ditch or water course with which they are to be connected shall be a running stream; it being sufficient if it be a slough or lake furnishing an outlet for surface water.

2. WATERS AND WATER COURSES (§ 126) — CONSTRUCTION — DRAINAGE — ACTIONS — QUESTION FOR JURY.

In an action against a railroad company for damages to crops caused by the company's failure to construct lateral drains to carry off surface water, evidence held sufficient to carry the case to the jury.

3. WITNESSES (§ 52) — COMPETENCY.

Where a husband and wife join in an action, either is competent to testify when he or she is a substantial party to the suit and interested in the result.

4. WITNESSES (§ 52) — SEPARATE ESTATE OF WIFE — RIGHTS OF HUSBAND.

While the Married Woman's Act (Rev. St. 1909, §§ 8304, 8309) dissolved the prior unity of husband and wife and allowed her to take the issues and profits of her separate estate, yet, in view of section 8308, providing that the natural products of the wife's land may be attached or levied upon by the husband to liquidate his debts contracted for necessaries for the wife and family, and for labor or materials furnished upon or for cultivation of such estate, a husband who cultivates the land of his wife has such an interest in the issues thereof that in an action for damages to crops he is competent to testify against the defendant.

5. WATERS AND WATER COURSES (§ 126) — INJURIES TO CROPS — ACTIONS — INSTRUCTIONS.

In an action against a railroad company for injuries to crops owing to the obstruction of surface water because of the failure of a railroad company to provide lateral ditches, an instruction which did not require the jury to find that such lateral ditches would connect with sufficient drains, and that the water had been obstructed by the roadbed, is improper, even if the evidence tended to show those facts.

6. DAMAGES (§ 37) — GROWING CROPS — MEASURE.

The measure of damages for the loss of growing crops is the value of the crops destroyed standing in the field at that time, and therefore in such an action for damages to growing crops the owner's loss of employment owing to their destruction cannot be considered.

7. DAMAGES (§ 174) — MEASURE — EVIDENCE — GROWING CROPS.

In an action for damages for the destruction of growing crops, evidence of previous yields upon the same land or upon similar land, together with the cost of production and of the market price, is competent on the measure of damages.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by W. R. Pace and N. C. Pace against the St. Louis Southwestern Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

S. H. West and Roy F. Britton, both of St. Louis, and Wammack & Welborn, of Bloomfield, for appellant. J. L. Fort, of Dexter, and K. C. Spence, of Bloomfield, for respondents.

NORTONI, J.

This is a suit for damage to growing crops. Plaintiffs recovered, and defendant prosecutes the appeal.

The suit proceeds on the grounds of negligence for the failure of defendant to observe the duty enjoined by statute upon railroad companies to construct and maintain suitable ditches and drains along each side of the railroad to connect with ditches and drains or water courses so as to afford sufficient outlet to carry off water which the embankment of such railroads may obstruct. It appears defendant's railroad passes through plaintiffs' farm in Stoddard county, which consists principally of low bottom land. The evidence tends to prove that defendant omitted to construct ditches or drains along the sides of its railroad to connect with a drain or water course passing under the same through a trestle, and thereby obstructed the free flow of water so as to occasion it to accumulate on a parcel of land tilled by plaintiffs. That portion of plaintiffs' farm on which the growing crops were submerged during the years 1907, 1908, and 1909 lies immediately west of and adjacent to the railroad. The water flows from the hills situate about a quarter of a mile west of the railroad across plaintiffs' land, and prior to the building of the railroad to the southeast therefrom. The railroad embankment, it appears, is from three to seven feet in height where it passes through plaintiffs' farm, and upon building it defendant left two openings or trestleways through the same. One of these trestles is mentioned in the evidence as No. 19, and the other as 19a. It is said that, though defendant left the two openings in its embankment over which the trestle work is erected, it constructed no ditches along the sides of its road to connect therewith. Therefore the flow of water was obstructed by the railroad embankment so as to accumulate there and submerge the growing crops.

It is urged that plaintiffs are not entitled to recover for the reason it does not appear that there was any ditch, drain, or water course with which defendant might connect lateral ditches along the sides of its roadway to afford drainage for the land. The statute requires railroad companies, owning or operating any railroad, within three months after the completion of the road, to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad and suitable ditches and drains along each side of the roadbed to connect with ditches, drains, or water courses 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 the railroad. See section 3150, R. S. 1909. There can be no doubt that the statute lays the duty to construct the lateral ditches contemplated only to connect with ditches, drains, or water courses, and, if there be no such ditches, drains, or water courses with which to connect the lateral ditches, the obligation does not obtain, and therefore may not be violated. See Cooper v. St. Louis, M., etc., R. Co., 123 Mo. App. 141, 100 S. W. 494; Ranney v. St. Louis & S. F. R. Co., 137 Mo. App. 537, 119 S. W. 484; Collier v. Chicago & A. R. Co., 48 Mo. App. 398; Williamson v. M., K. & T. R. Co., 115 Mo. App. 72, 90 S. W. 401. But it is not essential that the ditch, drain, or water course into which the railroad company is required to drain and with which it is required to connect by the construction of lateral ditches or drains shall be a running stream. It is sufficient if it be a slough or lake and is adequate to receive and furnish an outlet for the water complained of. See Cooper v. St. Louis, M., etc., R. Co., 123 Mo. App. 141, 100 S. W. 494.

There is no complaint in the petition with respect to the failure...