Scott v. Missouri Southern R. Co.

• Decision Date: 30 June 1911
• Citation: 139 S.W. 259,158 Mo. App. 625
• Parties: SCOTT v. MISSOURI SOUTHERN R. CO.
• Court: Missouri Court of Appeals

139 S.W. 259

158 Mo. App. 625

SCOTT v. MISSOURI SOUTHERN R. CO.

St. Louis Court of Appeals. Missouri.

June 30, 1911.

1. APPEAL AND ERROR (§ 515) — RECORD—PLATS.

Where plats are used in the examination of witnesses, who, in the presence of the court and jury, point out the location of local features testified to, they should either be incorporated in the transcript on appeal or by agreement of counsel brought before the court on appeal in order to bring before the court on appeal all the testimony at the trial.

2. APPEAL AND ERROR (§ 878)—QUESTIONS REVIEWABLE—ERROR PREJUDICIAL TO SUCCESSFUL PARTY.

The successful party who does not appeal may not, on the appeal of the defeated party, question rulings against him or attack the verdict because insufficient.

3. TRIAL (§ 139)—DEMURRERS TO EVIDENCE.

Where there is evidence to sustain a verdict for plaintiff, a demurrer to the evidence is properly refused.

4. APPEAL AND ERROR (§ 1033)—QUESTIONS REVIEWABLE—ERRORS FAVORABLE TO PARTY COMPLAINING.

A defeated party may not complain of instructions too favorable to him.

5. WATERS AND WATER COURSES (§ 38)— "WATER COURSE."

A "water course," within the rule as to obstruction is a living stream of water with well-defined banks, and a channel and bed, though the stream need not run continuously, but it must be fed from other and more permanent sources than mere surface water resulting from rain or snow discharged from a higher to a lower level and find exit through its channel.

6. WATERS AND WATER COURSES (§ 171)— CONSTRUCTION OF TRACK—CROSSING WATER COURSES—OBLIGATION.

A railroad company may cross a water course in the construction of its roadway either by means of a bridge or trestle; but it must exercise reasonable care not only to secure the safety of the traveling public on its road, but to see that no unnecessary injury is done to adjoining landowners by the obstruction of the waters.

7. WATERS AND WATER COURSES (§ 179)— CONSTRUCTION OF ROADWAY—REASONABLE CARE—QUESTION FOR JURY.

Whether a railroad company constructing its roadway across a water course exercised reasonable care and skill, and thereby prevented any unnecessary injury to adjoining landowners, is for the jury.

Nortoni, J., dissenting.

Appeal from Circuit Court, Wayne County; Jos. J. Williams, Judge.

Action by Johanna Scott against the Missouri Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. B. Daniel and Munger & Meador, for appellant. V. V. Ing and J. H. Raney, for respondent.

REYNOLDS, P. J.

This action was brought by plaintiff as owner of certain lands in Wayne county, to recover damages on account of the alleged carelessness and negligence of defendant in the reconstruction of its trestle over and across Greenwood Valley Creek where it runs through plaintiff's land, Greenwood Valley Creek being alleged to be at the times mentioned in the petition and now a natural drainage and outlet for all water naturally draining and flowing off of adjacent lands which drain and run by natural flow down Greenwood Valley, it being alleged to be a watercourse or living stream of water. Briefly, it is charged that by the negligent and careless manner in which timbers and piling were placed and put in the channel of the creek, in the reconstruction of the trestle, and by leaving old piling in the creek, and by the negligent and careless construction of the dumps on either side of the trestle, and by carelessly and negligently placing its tracks too low, the waters of the creek were caused and made to flow against the bank of the creek on one side immediately below the trestle and to wash and cut away the bank and thereby caused the waters of the creek to flow out of the channel of the creek and onto and over plaintiff's land and inclosed and cultivated fields, overflowing them, washing away the soil and covering part of the land with driftwood and débris. Damages are laid at $1,000.

The answer, after a general denial, sets up that whatever damage plaintiff sustained was caused by an act of God in an unprecedented rainfall and freshet, that could not have been foreseen or the damage prevented by defendant; that it at all times exercised ordinary care in the construction of the railroad and trestle through the land of plaintiff in order to guard against possible or probable damage to plaintiff's land. It is further set up that whatever damage plaintiff sustained was caused wholly or in part by her negligence in permitting the channel of Greenwood Valley Creek through her lands to grow up with brush and trees and by negligently permitting the bank of the creek to be washed away when that could have been prevented by her at slight expense, and by negligently and carelessly permitting the channel of said creek to become filled up and choked with driftwood, brush and logs and other débris.

The reply was a general denial of these averments of new matter.

There was a verdict and judgment for plaintiff for $219 for her damages, the trial being before the court and a jury.

A great mass of testimony covering over 480 printed pages, was introduced at the trial. At the close of the testimony in the case defendant demurred to the evidence. The court overruled this, defendant excepting. All the instructions asked by defendant were refused, the court giving instructions of its own motion. Saving exception, defendant has duly perfected its appeal to this court.

We might dispose of this case on the point made as to the sufficiency of the evidence to withstand a demurrer by saying that we have not before us all the testimony which was at the trial. It appears that in the examination of the witnesses for plaintiff and defendant, a sketch map or plat of the location was used in evidence and frequently referred to by the witnesses, who, in the presence of the court and jury, pointed out the location of the trestle, dumps, piling and other local features. It is very difficult to understand the testimony of the witnesses in the absence of this plat. When plats are used they should either be incorporated in the transcript, or, by agreement of counsel, brought before us. This latter course is frequently and very properly taken, and is always of service to the reviewing court. But even with such testimony as we have before us, we feel warranted in saying that it is sufficient to sustain the action of the trial court in overruling the demurrer to it. There was ample testimony sustaining the averments in plaintiff's petition and supporting the verdict. We have the rather unusual situation here of counsel for respondent making much more serious attacks upon the verdict and the action of the learned trial court in the admission and exclusion of evidence and in the matter of instructions to the jury and the amount of the verdict, than are made by counsel for appellant. But as plaintiff has not seen fit to appeal, these attacks by her counsel cannot be considered. All that we can here consider are the points made by counsel for appellant, which are directed against the sufficiency of the evidence to sustain the verdict, against the instructions given by the court, and to the action of the court in refusing the instructions asked on behalf of defendant. No specific error is assigned to any of the instructions nor to the...