Ribello v. Chicago, B. & Q. R. Co.

• Citation: 176 S.W.2d 670,237 Mo.App. 587
• Parties: Filippo Ribello, Respondent, v. Chicago, Burlington and Quincy Railroad Company, a Corporation, Appellant
• Decision Date: 04 January 1944
• Court: Court of Appeal of Missouri (US)

176 S.W.2d 670

237 Mo.App. 587

Filippo Ribello, Respondent, v. Chicago, Burlington and Quincy Railroad Company, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis District

January 4, 1944

Appeal from the Circuit Court of the City of St. Louis; Hon. James F. Nangle, Judge.

Reversed and remanded.

J A. Lydick and Douglas W. Robert for appellant.

(1) (a) An extraordinary, unforeseen, unusual or violent rainstorm is an act of God, and defendant is not liable for damages resulting therefrom. Ford v. Wab. R. R., 318 Mo 723, 300 S.W. 769. (b) The storm need not be unprecedented no matter how often one occurs. Ford v. Wab. R. R., 318 Mo. 723, 300 S.W. 769; People v. Utica Cement Co., 22 Ill.App. 159; L. & N. v. Finlay (Ala.), 185 So 904; 4 Rul. Cas. Law, p. 713; 9 Am. Juris., p. 852. (2) (a) This action is not brought under the Ditches and Drains Statute of Missouri. The statute contains no requirement for a railroad to maintain openings under its right of way, or when waters are obstructed by the right of way. Sec. 5222, R. S. Mo. 1939. (b) The statute is not applicable to cases where the flow or flood of water is the result of an unusual, extraordinary, unforeseen and violent rainstorm, an act of God. Ellet v. St. L., K. C. & N. Ry., 76 Mo. 518; Harris v. Frisco Ry., 224 Mo.App. 455, 27 S.W.2d 1072; Cooney v. Pryor, 203 S.W. 630. (c) Nor are railroads required to anticipate unusual, extraordinary or violent rainstorms or to provide openings or drains to care for them and failure to do so is not negligence. Ellet v. St. L., K. C. & N. Ry., 76 Mo. 518; Evans v. Wab. Ry., 222 Mo. 435, 121 S.W. 36; Sherwood v. St. L. S.W. Ry. (Mo. App.), 187 S.W. 260. (3) At common law a railroad has the right to ward off surface water, a common enemy, and to prevent its flow across its right of way and has the right to build solid embankments without openings and in so doing, if it injures a servient owner, it is damnum absque injuria. Schneider v. Mo. Pac. Ry., 29 Mo.App. 68; Collier v. C. & A. Ry., 48 Mo.App. 398; Thompson v. C. M. & St. P. Ry., 137 Mo.App. 62; Sandy v. City of St. Joseph, 142 Mo.App. 330; Johnson v. Leazenby, 202 Mo.App. 232; McCormick v. K. C., St. J. & C. B. Ry., 57 Mo. 433; Hosher v. K. C., St. J. & C. B. Ry., 60 Mo. 329; Abbott v. K. C., St. J. & C. B. Ry., 83 Mo. 271; Cox v. H. & St. J. Ry., 174 Mo. 588; Goll v. C. & A. Ry., 271 Mo. 655. (4) (a) The admission of the depositions of W. J. Colbert and J. L. Mason was error. Both witnesses were in court; neither was a party to the suit. Sec. 1944, R. S. Mo. 1939; Heinbach v. Heinbach, 262 Mo. 69. 170 S.W. 1143; Francis v. Willits, 30 S.W.2d 203; Dubowsky v. Binggeli, 184 Mo.App. 361, 171 S.W. 12. (b) Of the two exceptions to the rule that depositions are not admissible when the witness is in court, (1) to impeach the testimony of a witness, and (2) as admission against interest, the first could not apply as the witnesses had not testified. Winegar v. C. B. & Q. R. R., 163 S.W.2d 357. (c) The second could not apply as neither witness was a party to the suit. Schmitz v. St. L., I. M. & S. R. R., 119 Mo. 256; Donet v. Prudential Ins. Co., 23 S.W.2d 1104; Meyer v. Dubinsky, 133 S.W.2d 1106. (d) The depositions were inadmissible as admissions against interest for the reason that the "admissions," if such they may be called, were not made during the continuance of the witness' agency for the defendant in regard to a transaction then pending. St. Charles Bank v. Denker, 275 Mo. 607; Winegar v. C. B. & Q. R. R., 163 S.W.2d 357; Murray v. Motor Stages, 133 S.W.2d 1074. (e) For a declaration of an agent to be binding upon the principal, it must have been a part of the res qestae, made during the continuance of the agency in regard to, and contemporaneous with the transaction then pending. Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W.2d 947; Redmond v. Met. St. Ry. Co., 185 Mo. 1, 84 S.W. 26; Rice v. St. Louis, 165 Mo. 636, 65 S.W. 1002; Brandtjen v. Hunter, 145 S.W.2d 1009; Gaines v. Berkshire I. Co. 228 Mo.App. 319, 68 S.W.2d 905; Stipel v. Piggott, 219 Mo.App. 222, 269 S.W. 942; Williams v. Gideon Lum. Co., 224 S.W. 51; Robinson v. Bush, 199 Mo.App. 184, 200 S.W. 757. (5) Instruction No. 1 is based upon a different cause of action than that pleaded in the amended petition, hence error. Rishel v. K. C. Pub. S. Co. (Mo.), 129 S.W.2d 851; Morroy v. Wab. Ry., 219 Mo.App. 62, 265 S.W. 851; Gandy v. Frisco Ry. Co., 329 Mo. 459, 44 S.W.2d 634. (6) (a) Instruction No. 1 purports to cover the whole case and directs a verdict, but omits the defense of the act of God, the extraordinary, usual and violent rainstorm. This was error. Brownlow v. Wollard, 66 Mo.App. 636; Sherwood v. St. L. S.W. Ry., 187 S.W. 260; Cooney v. Pryor, 203 S.W. 630; Paulson v. Wab. Ry., 207 S.W. 81; Riffe v. Wab. Ry., 207 S.W. 78; Bailey v. Wab. Ry., 207 S.W. 82; Clayton Lumber Co. v. Seever, 223 S.W. 442; Bouligny v. Met. Life I. Co., 133 S.W.2d 1094. (b) The evidence of both plaintiff and defendant showed that the storm was an act of God. It is not necessary to plead an act of God as it can be shown under a general denial. Ellet v. St. L., K. C. & N. Ry., 76 Mo. 518; Davis v. Wab. Ry., 89 Mo. 340; Clarkson v. Standard Brass Co., 170 S.W.2d 407. (7) The use of the words "heavy rainfall" in Instruction No. 1 was error. It was a comment upon the evidence as minimizing the storm as well as a misstatement of the character of the rainfall. It singled out this evidence and gave undue prominence to it to the exclusion of conflicting facts and evidence. Lithegner v. City of St. Louis, 125 S.W.2d 925. (8) There was neither pleading nor evidence that the ties were washed into "prongs and branches" of the watercourse, or that the defendant built an embankment across any "prongs and branches," or that any water flowed through any "prongs and branches," or that the watercourse had any "prongs and branches." Without pleading or evidence concerning "prongs and branches" Instruction No. 1 is erroneous. Gandy v. Frisco Ry., 329 Mo. 459, 44 S.W.2d 634; Kitchen v. Schlueter, 323 Mo. 1179, 20 S.W.2d 676; State ex rel. Central Coal Co. v. Ellison, 270 Mo. 645, 195 S.W. 721. (9) Instruction No. 1 referred to negligence in the construction of "small or insufficient or improperly constructed openings". There were three culverts mentioned and described in the evidence. There was no evidence of any insufficiency or improper construction of two of them. The instruction was therefore not based upon the evidence. Gandy v. Frisco Ry. 329 Mo. 459, 44 S.W.2d 634. (10) Instruction No. 1 is erroneous in that it permitted the jury to find for plaintiff if it found that "the said railroad ties which washed into said watercourse did cause the damming up and blocking of a certain culvert through said watercourse empties and flows under Chambers road. It assumes that the ties were the sole cause of the blocking and ignores the evidence that there was other matter choked into this culvert, i.e. branches of trees, timbers, poles, etc. It is error to give an instruction which excludes consideration of points raised by the evidence. Sawyer v. H. & St. J. R. R., 37 Mo. 240; Chappell v. Allen, 38 Mo. 213; Perkins v. K. C. So. Ry., 329 Mo. 1203, 49 S.W.2d 103. (11) Instruction No. 1 is erroneous in that it told the jury that if it believed from the evidence that "the defendant improperly and negligently constructed and maintained said openings through said embankment, which contributed in some way to the destruction and injury to plaintiff's crops" he was entitled to recover. The use of the words "contributed in some way," was error. Hof. v. Transit Co., 213 Mo. 445, 111 S.W. 1166; Krehmeyer v. Transit Co., 220 Mo. 639, 120 S.W. 78; Moon v. Transit Co., 247 Mo. 227, 152 S.W. 303. (12) (a) Instruction No. 3 is erroneous in that it singles out and gives undue prominence to a portion of the evidence on a matter not at issue in the case. Lithegner v. City of St. Louis, 125 S.W.2d 925; Griffith v. Walesby, 91 S.W.2d 232; Lewis v. K. C. Pub. S. Co., 17 S.W.2d 359; Jones v. Norman, 248 S.W. 621. (b) This is especially true when there is no charge that defendant blocked any watercourse. Rucker v. Alton Ry., 343 Mo. 929, 123 S.W.2d 24. (c) It is a comment on the evidence. In re Bearden, 86 S.W.2d 585, 593. (13) The court erred in overruling the objection to the following question asked witness Buchmueller: Q. "And from your study beginning at that time, for the five minute period, was the rain of July, 1942, one which might be reasonably anticipated?" Glasgow v. Met. St. Ry. Co., 191 Mo. 347, 89 S.W. 915; Kaw Feed Co. v. A. T. & S. F. Ry., 129 Mo.App. 498; Sutter v. Kansas City, 138 Mo.App. 105, 119 S.W. 1084. (14) Permitting hypothetical questions, which assume facts not in evidence, is error. Bennett v. Myres, 21 S.W.2d 943; Streeter v. Washington Fidelity Co., 229 Mo.App. 33, 68 S.W.2d 889. (15) As railroads are not required to prepare culverts for extraordinary rainstorms, evidence as to the condition of Culvert No. 1 was inadmissible. Ellet v. St. L., K. C. & N. Ry., 76 Mo. 518; Harris v. Frisco Ry., 224 Mo.App. 455, 27 S.W.2d 1072; Cooney v. Pryor, 203 S.W. 630.

Anthony Canzoneri and Echeal T. Feinstein for respondent.

(1) Under Missouri Code pleading forms of actions have been abolished. (a) One who obstructs the flow of water in a natural watercourse, resulting in injury, is liable. Beauchamp v. Taylor, 132 Mo.App. 92, 95, 111 S.W 609; Lucas v. City of Louisiana, 173 S.W.2d 629; Munkres v. Kansas City et al., 72 Mo. 514. (b) Statute does not have to be pleaded. R. S. Mo. 1939, sec. 5222; Jones v. C. B. & Q. R. R., 125 S.W.2d 5, 7. (c) One warding off surface water must do so without negligence. Goll v. C. & A. R. R., 271 Mo. 655, 666; Collier v. C. & A. R. R., 48 Mo....