Sherwood v. St. Louis S. W. Ry. Co.

• Decision Date: 24 June 1916
• Docket Number: No. 1667.,1667.
• Citation: 187 S.W. 260
• Parties: SHERWOOD v. ST. LOUIS S. W. RY. CO.
• Court: Missouri Court of Appeals

187 S.W. 260

SHERWOOD v. ST. LOUIS S. W. RY. CO.

No. 1667.

Springfield Court of Appeals. Missouri.

June 24, 1916.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Action by Weston Sherwood against the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Edward A. Haid, of St. Louis, and Wammack & Welborn, of Bloomfield, for appellant. Robert L. Ward, of Caruthersville, and Riley & Riley, of New Madrid, for respondent.

STURGIS, J.

The damages sued for, and for which plaintiff was awarded $3,000, were occasioned to plaintiff's land by the overflow from backwater of the Mississippi river during the great flood of April, 1913. The plaintiff claims that the defendant's negligence in not leaving a sufficient opening through its roadbed, to permit the passage of the water through same, combined with the high water to cause same to overflow the defendant's embankment and wash away the soil and cut channels through his farm. The defendant claims that it was not negligent in this respect, in that the opening left by it through the embankment was amply sufficient to afford an outlet for all the waters that would ordinarily accumulate or could reasonably be expected would do so, and that the damage in question was the result of an unusual and extraordinary flood and overflow of the river, such that it was not bound to anticipate and provide against the same. Defendant also claims that the flood and overflow of water was of such vast extent and overwhelming character that the damage would have occurred regardless of its embankment or any sized opening therein.

The land in question is located some four miles from the river, northwest of the town of New Madrid, and in and along what is known as the De Cyperi, which is described as an overflow channel or depression leading from the Mississippi river to the Little River Swamp to the northwest. This channel or depression leaves the Mississippi river about a mile below New Madrid and extends northwest, and is crossed at about a right angle by defendant's roadbed at plaintiff's farm of 163 acres, of which 56 acres are on the southeast side of the defendant's railroad and 107 acres on the northwest side. This De Cyperi channel is really a cultivated valley between slightly higher ridges and of somewhat indefinite and varying width. The crest of the ridges on the north and south are about opposite each other and nearest together at and near plaintiff's farm, or, as some witnesses put it, this De Cyperi channel or valley passes through the ridge at this place. The defendant's railroad crosses the De Cyperi from one ridge to the other on an embankment, the valley here being about a quarter of a mile wide. The height of this railroad embankment varies from 2 or 3 feet to 7 or 8 feet where the valley is lowest. Some of the witnesses speak of an inner channel or depression in this valley about 300 feet wide and 3 or 4 feet lower than its banks. The defendant had left a 90-foot opening or trestle at the lowest part of this basin-like valley.

A map of the flooded area shows that when this injury occurred there was a vast flooded area to the east of plaintiff's farm, where defendant's road crosses the De Cyperi valley, extending inland from the river from 10 to 20 miles or more, covering most of Mississippi and the eastern portion of New Madrid counties, beginning above Cairo and extending with the bend of the river to below New Madrid. Within this area the levees along the river had broken and been washed away at several places to the extent of 4 or 5 miles, allowing the flood waters of the river to cover the land to the ridges converging at this point. The flood waters converged like a funnel and passed through the De Cyperi under and across defendant's roadbed, and again expanded into a vast inland sea in the Little River valley to the west. The dry land formed two tongues converging, one from the north and the other from the south, with plaintiff's farm in the De Cyperi valley or depression between. In ordinary conditions this De Cyperi channel is not a water course, even for surface water, and it is only when the Mississippi river reaches a high-flood stage that the water backs up therein and reaches such a high stage that it begins to run westward and away from the river into the Little River Swamps through the De Cyperi basin over plaintiff's farm. Since the settlement of the country, this has occurred only a few times. At the time of this injury, the Mississippi river rose to the highest stage of which there is any record. In the previous year, however, it rose to a stage only about 8½ inches lower. These two floods and the flooded areas were, of course, very similar. In 1912, some 400 or 500 feet of defendant's railroad was washed away. It was restored, leaving, as stated, about 90 feet of open trestle. In 1913, during the flood now in question, about 1,000 feet of defendant's track was washed away. No great damage was done to plaintiff's farm in 1912, and the great damage of 1913 is accounted for, not only by the 8-inch higher rise of the river, but because in 1912 the defendant's embankment was washed away early in the flood, while in 1913 it had been ballasted with stone and withstood the flood for several days, forcing the water to flow and fall over the embankment. The evidence also indicates that the breaks in the levees further north in the vicinity of Cairo caused a strong current to come from the northeast as well as from the river to the south below New Madrid, and the combined currents and greater volume of water converging here poured like a millrace through the De Cyperi channel, making a much stronger and swifter current than in 1913. A civil engineer, who was present at the time and made a study of the flood conditions, said that the water attained a speed of 8 miles an hour in this channel, and that a volume of water equal to more than 1/20 of the flow of the Mississippi river passed through this De Cyperi valley.

The evidence on which plaintiff most strongly relies, as proving that defendant's embankment was one of the efficient causes of his land being so badly washed, is that as the water gradually rose in the De Cyperi the driftwood and debris lodged against the trestlework and, this opening being choked and too small, the water dammed up till it was overflowing the embankment, beginning 100 feet or more from the end of the trestle, where the embankment was slightly lower. Several witnesses testified that, before the embankment gave way and while the water was pouring over it, the water on the southeast side of the embankment, nearest the river, was 2 to 4 feet higher than on the northwest side. The Frisco railroad about parallels the...