Standley v. Atchison, Topeka & Santa Fe Railway Co.
| Decision Date | 05 November 1906 |
| Citation | 97 S.W. 244,121 Mo.App. 537 |
| Parties | ISAAC STANDLEY, Respondent, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Carroll Circuit Court.--Hon. John P. Butler, Judge.
Thomas R. Morrow and Virgil Conkling for appellant.
(1) Opinions, conclusions and deductions as to existing conditions, and opinions or predictions as to future happenings are alike incompetent when applied to physical facts which can be described to the jury. Such expressions usurp the province of the jury. Muff v. Railroad, 22 Mo.App. 584; Kendall Co. v. Bain, 46 Mo.App. 581; Madden v. Railroad, 50 Mo.App. 666; Krueger v Railroad, 84 Mo.App. 358; Kirby v. Railroad, 85 Mo.App. 351; Nash v. Dowling, 93 Mo.App. 156; Schermer v. McMahon, 108 Mo.App. 36; Graney v Railroad, 157 Mo. 666; Graham v. Railroad (Penn.), 12 L. R. A. 293; Burt v. Wigglesworth, 117 Mass. 302. (2) Plaintiff's instruction numbered 3 was unintelligible, confusing, speculative, not based on evidence, ignored an affirmative defense, and was therefore erroneous. Crole v. Thomas, 17 Mo. 329; Young v Ridenbaugh, 67 Mo. 574; Brown v. Railroad, 80 Mo. 457; Greer v. Railroad, 80 Mo. 555; George v. Railroad, 40 Mo.App. 433; McCarthy v. Fagin, 42 Mo.App. 619; State v. Allen, 94 Mo.App. 508; Ormsby v. Ins. Co., 98 Mo.App. 371. (3) Plaintiff's instruction numbered 4 erroneously declared defendant liable for the combined effects of negligence and providential acts, and ignored the doctrine of efficient cause. Coleman v. Railroad, 36 Mo.App. 476; James v. Railroad, 69 Mo.App. 431; Kenney v. Railroad, 74 Mo.App. 301; Commission Co. v. Railroad, 113 Mo.App. 544. (4) Plaintiff's instruction numbered 4 is in direct conflict with defendant's instruction numbered 2. The giving of inconsistent and conflicting instructions is reversible error. Otto v. Bent, 48 Mo. 23; Fath v. Railroad, 105 Mo. 537; Redpath v. Lawrence, 42 Mo.App. 101; Frank v. Railroad, 57 Mo.App. 181; Jones v. Railroad, 59 Mo.App. 137; Bank v. Bank, 64 Mo.App. 253; Standard Oil v. Drug Co., 74 Mo.App. 446; Motch v. Railroad, 82 Mo.App. 50; Haynes v. Casualty Co., 98 Mo.App. 410. (5) Defendant's instruction numbered 9 correctly defined surface water and the liability of defendant on account thereof, and hence was erroneously refused. Shane v. Railroad, 71 Mo. 237; Munkres v. Railroad, 72 Mo. 514; Abbott v. Railroad, 83 Mo. 271; Kenney v. Railroad, 74 Mo.App. 301; Johnson v. Railroad, 111 Mo.App. 378. (6) Instruction numbered 11, requested by defendant, holding the company not liable for the obstruction of surface-waters by the railroad embankment, correctly declared the law of Missouri. The refusal of this instruction was manifest error. McCormick v. Railroad, 57 Mo. 433; Hosher v. Railroad, 60 Mo. 329; Benson v. Railroad, 78 Mo. 504; Abbott v. Railroad, 83 Mo. 271; Field v. Railroad, 21 Mo.App. 600; Schnieder v. Railroad, 29 Mo.App. 68; Collier v. Railroad, 48 Mo.App. 398; Johnson v. Railroad, 111 Mo.App. 378.
Lozier, Morris & Atwood for respondent.
(1) When the testimony relates to physical facts which cannot be accurately described to the jury as they really exist, and which men of ordinary understanding are capable of comprehending, witnesses who have personal knowledge may express their opinions concerning such things. Walker v. Davis, 83 Mo.App. 374; Madden v. Railroad, 50 Mo.App. 673; Haymaker v. Adams & Son, 61 Mo.App. 585; Eyerman v. Sheehan, 52 Mo. 221; Muff v. Railroad, 22 Mo.App. 584; Taylor v. Jackson, 83 Mo.App. 641; McPherson v. Railroad, 97 Mo. 253; Railroad v. Calkins, 90 Mo. 538; Shattuck v. Railroad, 6 Allen 115; Railroad v. DeLissa, 103 Mo. 130; Railroad v. Donovan, 149 Mo. 93; Sinclair v. Railroad, 70 Mo.App. 596; Salem v. Coffey, 113 Mo.App. 675. (2) The giving of an instruction subject to verbal criticism, will not constitute reversible error when, in view of all the other instructions, and the evidence in the case, it is not likely it misled the jury. Fugate v. Millar, 109 Mo. 281; Barry v. Railroad, 98 Mo. 63; Reilly v. Railroad, 94 Mo. 611; Henry v. Railroad, 113 Mo. 525; Burger v. Burger, 34 Mo.App. 153; Berkson v. Railroad, 144 Mo. 211; Weller v. Railroad, 164 Mo. 180; Parman v. Kansas City, 105 Mo.App. 691; Wheeler v. Bowles, 163 Mo. 398. (3) Where there is negligence concurring with the act of God, and but for such negligence the injury would not have occurred, the person guilty of the negligence is liable. Commission Co. v. Railroad, 113 Mo.App. 544; Davis v. Railroad, 89 Mo. 340; Pruitt v. Railroad, 62 Mo. 540; Coleman v. Railroad, 36 Mo.App. 466; Grier v. Railroad, 108 Mo.App. 565. (4) There is no conflict between plaintiff's instruction numbered 4 and defendant's instruction numbered 2. But even if they were somewhat contradictory, the error, if any, is in said instruction numbered 2 and was self invited on defendant's part, and is not fatal to the merits, and the judgment being manifestly for the right party, it is the duty of this court to affirm it, under R. S. 1899, sec. 865. Farrell v. Ins. Co., 66 Mo.App. 153; Singer v. Dickneite, 51 Mo.App. 245; Miller v. Lange, 84 Mo.App. 219; Melcher v. Derkum, 44 Mo.App. 645; Erickson v. Railroad, 171 Mo. 647; Barry v. Railroad, 98 Mo. 62. (5) Where an overflow is occasioned by the negligent act of a railroad company in obstructing the natural water of a stream, it is liable for the damage caused by such overflow, no matter if the water may be called "surface water" after it is forced out of the bank of the stream onto adjacent land. Edwards v. Railroad, 97 Mo.App. 103; Owen v. Railroad, 109 Mo.App. 608; Brink v. Railroad, 17 Mo.App. 177. (6) Defendant's instruction numbered 11 was properly refused by the court, as it was not within the issues made by the pleadings. But even if it had been proper for the court to have given it, defendant has failed to show by the record that it was prejudiced by its refusal. Haniford v. Kansas City, 103 Mo. 172; Heiman v. Fisher, 11 Mo.App. 275; Brownlee v. Hewitt, 1 Mo.App. 360; Burdict v. Railroad, 123 Mo. 221; Saltmarsh v. Rowe, 10 Mo. 38; Planing Mill Co. v. Spilker, 77 Mo.App. 409; Burns v. Liberty, 131 Mo. 372.
--The plaintiff's suit is to recover damages for the loss of his growing crops in the years 1903 and 1904, which he alleges were the result of the negligent construction of defendant's bridge across Little Wakenda creek. He alleges in his petition that at the times mentioned he was the owner of about one hundred and thirteen acres of land, thirty-five of which were bottom land, situated one-third of a mile northeast of said bridge, the defendant's right of way forming its southern boundary. Cottonwood creek and Chapman branch run through and join on plaintiff's land and empty into Little Wakenda creek a short distance north of defendant's said bridge. The bridge was constructed in 1895, the abutments consisting of rock and cement and built on the inside of the banks of the stream. Prior to the construction of the bridge in question there was a bridge built on piles at said point one hundred and eighty feet long, which was replaced by the said bridge complained of. When the iron bridge was built the piling of the old bridge was chopped off several feet above the surface of the bed of the stream; and all the trestle except the space between the abutments of the new bridge was replaced by an earth embankment. In constructing the abutments for the bridge in controversy, the dirt excavated for that purpose was thrown into the creek, a part of which lodged on the bank and part falling into the stream under the bridge. Several carloads of rock were put into the stream by defendant for the purpose of protecting the foundations of the abutments.
There was evidence that the dirt and rock mentioned raised the bed of the stream four or five feet and that at the time of the overflows the bed of the stream under the bridge was two or three feet higher than it was immediately north of the bridge and that the piling remaining in the stream was almost covered with dirt and rock. And there was evidence that the iron bridge as constructed with its abutments, dirt and rock, and the drift accumulating in consequence of such construction tended to diminish the natural capacity of the stream to carry off water during extraordinary floods of high water: or, as otherwise expressed, created to some extent what might be called a damming of the water.
It was claimed, and there was evidence to that effect, that as a result of such obstruction plaintiff's bottom land in May, 1903, and June, 1904, was covered by water several feet deep which in each instance remained on the said land from ten to twelve hours. It was also shown that prior to the erection of the new bridge only a few acres of said land overflowed and the water remained only four or five hours, and that there had been many rains when as much water fell, before the later bridge was erected, as fell in 1903 and 1904. And it was shown that in June, 1904, the water on the north side of defendant's track was nearly three feet higher than it was on the lower side of the bridge. The plaintiff lost by reason of said overflow a part of his crops and his land was placed in bad condition by reason of the fact that the flood left thereon mud, logs and other debris. The testimony was to the effect that plaintiff's damages ranged from $ 150 to $ 300. The jury returned a verdict in his favor for $ 175. The defendant appealed.
Defendant raises questions as to the competency of testimony introduced on the trial and assigns as error the giving, and the refusal by the court to give, certain instructions to the jury; and further contends that upon the whole case the court committed error in not...
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