Scott v. Missouri Southern R. Co.
| Decision Date | 30 June 1911 |
| Citation | 139 S.W. 259,158 Mo.App. 625 |
| Parties | JOHANNA SCOTT, Respondent, v. MISSOURI SOUTHERN RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted June 7, 1911
Appeal from Wayne Circuit Court.--Hon. Joseph J. Williams, Judge.
Judgment affirmed.
J. B Daniel and Munger & Meador for appellant.
(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer to the testimony at the close of the evidence. 1 Thompson Commentaries on Negligence, secs. 2 and 3; McMahon v. Express Co., 132 Mo. 641. (2) The grant of a right of way to a railroad company carries with it the right to make the necessary embankments, culverts and ditches for the protection and proper grade of the road, and if in exercising this right with due care and skill surface water from adjoining land of the grantor is obstructed it is damnum absque injuria. Benson v. Railroad, 78 Mo 504. And again, if a railroad company is not negligent in the construction of its road bed it will not be liable for flooding adjoining land and by gathering and deflecting surface water thereon and such act will be damnum absque injuria. Jones v. Railroad, 84 Mo. 157; Collier v Railroad, 48 Mo.App. 398.
V. V. Ing and J. H. Raney for respondent.
A person may recover damages for injuries done to his land caused by the obstruction of a natural water course, however carefully the obstruction may have been made. Webb v. Carter, 121 Mo.App. 147; Stanley v. Railroad, 121 Mo.App. 537; Edwards v. Railroad, 97 Mo.App. 103; Martin v. St. Joseph, 117 S.W. 94; Hedrick v. St. Joseph, 122 S.W. 375. And it makes no difference in this respect if the petition alleges negligence. Hedrick v. St. Joseph, 122 S.W. 375.
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 cause 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 debris. Damages are laid at one thousand dollars.
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 debris.
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 verdict, the argument of counsel here proceeding on the theory that the demurrer should have been sustained and that, at most, plaintiff was entitled to nominal damages. No argument is made to us on the instruction as to the measure of damages, beyond the claim that nominal damages could alone be recovered.
We have disposed of the first by saying that there was evidence sustaining the verdict and no error in overruling the demurrer to it. Nor was there error in refusing those instructions asked by defendant which were in effect demurrers to the evidence.
The most effective way to dispose of the objections to the instructions which the learned trial court gave of his own motion is to set them out substantially as given. He told the jury that if they found and believed from the evidence that in the years 1907 and 1908, the defendant railroad company rebuilt and reconstructed its trestle on the line of its railroad and right of way over Greenwood Valley Creek, at a point where defendant's railroad passes through the land owned by plaintiff in Wayne county, and if they found from the evidence that that creek was then a natural watercourse as afterwards to be defined in the instructions, and that defendant in so rebuilding and reconstructing its trestle placed piling which supported it across the natural channel of this creek in rows, obliquely across the current of the creek, "without leaving sufficient space between said rows of piling to permit the free flow of said waters down the channel of the creek," and if the jury found and believed from the evidence that this trestle could have been constructed by placing rows of piling across the bed of the creek so...
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