Sherwood v. Worth County Drainage Dist. No. 1

• Citation: 298 Mo. 82,250 S.W. 605
• Decision Date: 06 April 1923
• Docket Number: No. 23446.,23446.
• Parties: SHERWOOD v. WORTH COUNTY DRAINAGE DIST. NO. 1.
• Court: Missouri Supreme Court

250 S.W. 605

298 Mo. 82

SHERWOOD v. WORTH COUNTY DRAINAGE DIST. NO. 1.

No. 23446.

Supreme Court of Missouri, Division No. 1.

April 6, 1923.

Appeal from Circuit Court, Worth County; John M. Dawson, Judge.

Action by Bessie Sherwood against the Worth County Drainage District No. 1. Judgment for defendant on demurrer, and plaintiff appeals. Affirmed.

Du Bois & Miller, of Grant City, and J. E. Engle, of Kansas City, for appellant.

Kelso & Kelso, of Grant City, for respondent.

Statement.

WOODSON, J.

The plaintiff brought this suit in the circuit court of Worth county against defendant to recover $10,000 damages sustained by her for the alleged negligence of the defendant in killing her husband.

A demurrer was filed to the petition and sustained, and the plaintiff declining to plead further, judgment was rendered thereon for the defendant, and after moving unsuccessfully for a new trial, the plaintiff duly appealed the case to this court.

In order to clearly present the legal proposition presented for determination, it will be necessary to set forth the petition and the demurrer thereto, which are follows (formal parts omitted):

Plaintiff for her cause of action states that at all the times herein mentioned defendant, Worth County Drainage District No. 1, was and still is a corporation organized and existing under and by virtue of the laws of the state of Missouri and having power to sue and liable to be sued as such corporation.

Plaintiff further states that said corporation was organized by, and is composed of the owners of lands within a certain defined district in Worth county, Mo., and running north and south across said county and along the west fork of Grand river; that the lands composing said district are swamp and overflow lands and that the object of the formation of said corporation and drainage district was the reclamation and draining of said lands, to free the same from overflow and swamps so that the same might be farmed and operated to the advantage and profit to the owners thereof; that in pursuance of said object and in accordance with a plan for reclamation duly prepared by the engineers of said district and regularly and legally adopted by said district, said corporation did, during the years 1919 and 1920, cut and open certain ditches through the lands comprising said district for the purpose of shortening and straightening the channel of said West fork of Grand river, aforesaid, so that the surplus waters of said West fork of Grand river might easily and quickly escape from said lands.

Plaintiff further states that an inland town or village known as Oxford has for many years prior to the organization of said district been located a short distance to the eastward of the lands comprising said district; that the town of Parnell is and for many years prior to the organization of said district has been located about five miles to the westward of the lands comprising said district; that said town of Parnell is a station located on the Chicago Great Western Railroad. Plaintiff further states that for many years prior to the formation of said district and the organization of said corporation, a certain public road or highway crossed the lands comprising said district running east and west between the said town of Oxford and the town of Parnell; that for many years prior to the formation of the said district, all of the merchandise used by the merchants of the town of Oxford and all produce purchased and taken in trade by them was transported to and fro between the town of Oxford and the railroad station at Parnell over the highway aforesaid; that the said highway was a main or principal thoroughfare for the traveling public generally between the towns of Oxford and Parnell aforesaid.

Plaintiff further states that within the boundaries of said drainage district, said public road in parts, runs east and west between the northeast quarter and the southeast quarter of section 24, township 65, of range 32, in Worth county, Mo.; that on or about the ____ day of May, 1920, the said Worth County Drainage District No. 1, in pursuance of its said plan for reclamation, cut across said public road where it runs along the line between the northeast quarter and the southeast quarter of said section 24, its main ditch constructed by it for the purpose of shortening and straightening said West fork of Grand river for the reclamation of the lands within said district and for the benefit of the owners thereof, as aforesaid; that said main ditch so constructed across said public road was 15 feet in depth, 22 feet wide at the bottom thereof, and at least 50 feet wide at the surface thereof, and much larger at the time of the injury hereinafter alleged; that said main ditch, when so builded and constructed across said public road and continuously to and at the time of said injury, completely and totally obstructed the same and completely closed the same to public travel thereon.

Plaintiff further states that under the laws of the state of Missouri and by virtue of the statutes of said state under which defendant corporation was organized, and from which it derived its authority in the premises, it was the duty of defendant within 10 days after building and constructing its said ditch across the public road aforesaid, to build over said ditch a safe and suitable bridge to be used by the traveling public on the road or highway aforesaid, with the same safety and convenience as before the said ditch was built and constructed across said highway by defendant, as hereinbefore stated; that this duty the said defendant wrongfully and negligently failed to Perform in any manner whatsoever, but that soon thereafter defendant did wrongfully, carelessly, and negligently build and construct and did wrongfully, negligently, and carelessly permit to be built and constructed across said ditch on said highway, a seriously defective and dangerous bridge or crossing of a flimsy and temporary character; that said bridge or crossing was constructed of three cottonwood logs 42 feet in length laid across said ditch 8 feet below the surface of said highway on which were nailed two-inch bridge plank as flooring; that the south or downstream side of said bridge was two feet and three inches higher than the north or upstream side of said bridge or crossing; that said bridge or crossing was wholly and totally without banisters or railings of any kind or nature, whatsoever, and wholly and totally without anything to protect vehicles in crossing so as to prevent them running off of the edges of said bridge or crossing and falling into the bed of the ditch and running water eight feet below; that said bridge or crossing was so unsteady and unstable that the same would sway violently up and down while being crossed by wagons, trucks, and other vehicles; that the defendant herein further carelessly, wrongfully, and negligently placed and permitted to remain at the easterly approach to said bridge or crossing a large pile or quantity of dirt taken from ditch so that it was necessary for one approaching said bridge from the east or the direction of the village of Oxford, aforesaid, to make a sharp turn to the left immediately before and while descending the sloping bank of said ditch to the slanting, swaying, and unprotected bridge or crossing as aforesaid; that the said defendant, knowingly, wrongfully, carelessly, and negligently permitted said bridge or crossing to be and remain in the unsafe and dangerous condition aforesaid, and knowingly, wrongfully, carelessly, and negligently permitted and invited the traveling public to cross and use the said bridge in the unsafe and dangerous condition aforesaid.

Plaintiff further states that she was from the ___ day of ___, 1920, and until his death on or about the 13th day of August, 1920, the wife of one Frank Sherwood; that she lived with him and was supported by him as his wife in the village of Oxford, in Worth county, Mo., from said ___ day of ___, 1920, to the time of his death as aforesaid; that the said Frank Sherwood was at the time of his death as aforesaid in the employment of one W. A. Wilson, who operated a general store at the said village of Oxford; that it was a part of the duties of her said husband while so in the employ of said W. A. Wilson to run and operate a motor truck from the village of Oxford across the territory of the defendant drainage district along the highway, aforementioned, to and from the railroad station aforesaid, at Parnell; that on or about the 13th day of August, 1920, the said Frank Sherwood, in pursuance of his said employment and the duties thereof, started from the village of Oxford with a truck loaded with produce from the general store aforesaid, along the aforementioned highway to the town of Parnell, for the purpose of marketing same through the railroad station at said town of Parnell.

Plaintiff further states that while her said husband was operating the said motor vehicle or truck as aforesaid on said highway and at the bridge or crossing over defendant's ditch hereinbefore described in a careful and prudent manner, and while attempting to cross said bridge or crossing from the east and using ordinary care and caution in so doing, by reason of the wrongful, careless, and negligent acts of defendant as aforesaid, that in passing the pile of dirt knowingly and carelessly and negligently placed by defendant at the eastern approach to said bridge as aforesaid, and while making the turn to the left made necessary thereby, and in descending the bank of defendant's said ditch to the unsteady and slanting bridge aforesaid, and while using all of the care and caution possible under the circumstances in so doing, by reason of the careless and negligent acts of defendant as aforesaid, the truck driven by plaintiff's husband was thrown over the south or downstream side of said bridge where the same by reason and on account of the careless and...