Stone v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 07 July 1910
• Citation: Stone v. St. Louis, Iron Mountain & Southern Railway Company, 129 S.W. 1074, 146 Mo.App. 298 (Mo. App. 1910)
• Parties: H. S. STONE et al., Respondents, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

129 S.W. 1074

146 Mo.App. 298

H. S. STONE et al., Respondents, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Springfield

July 7, 1910

Appeal from Scott Circuit Court.--Hon. Henry C. Riley, Judge.

Judgment affirmed.

James F. Green for appellant.

(1) The court erred in admitting any testimony for the reason that the petition fails to state a cause of action. R. S. 1899 sec. 592; Carter v. Shotwell, 42 Mo.App. 663; Moore v. Dixon, 50 Mo. 524; Maupin v Triplett, 5 Mo. 422. (2) The petition is also defective in that it fails to state that there were other drains and ditches into which the surface water could have been carried. Graves v. Railroad, 69 Mo.App. 574; Collier v Railroad, 48 Mo.App. 398; Field v. Railroad, 21 Mo.App. 600; Byrne v. Railroad, 47 Mo.App. 383; Field v. Railroad, 76 Mo.App. 715; DeLapp v. Railroad, 69 Mo. 572. (3) The court erred in permitting witnesses to give their opinions as to the probable effect of the construction of ditches by the railway company and the amount of damages. Spencer v. Railroad, 120 Mo. 159; White v. Stoner, 18 Mo.App. 549; Watkins v. Railroad, 44 Mo.App. 245; Sallee v. St. Louis, 152 Mo. 615; Spalding v. Edina, 122 Mo.App. 65; Morgan v. Mfg. Co., 120 Mo.App. 590. (4) Error was committed in plaintiffs' instruction allowing a recovery for any sum which the jury might deem proper to award. The measure of damages was the value of the crop at the time it was destroyed. Hunt v. Railroad, 103 S.W. 133; Hosli v. Yokell, 57 Mo.App. 622.

H. C. O'Bryan for respondents.

OPINION

COX, J.

Action to recover damages on account of the alleged overflow of plaintiffs' lands and the destruction of their crops.

Plaintiffs allege in their petition that they were joint owners of a growing crop of corn on the east half of the southwest quarter, section 21, township 27, range 15, of the county of Scott in the year 1905. That said land lies in a bottom, the general course of which is from north to south and is from three-fourths to a mile wide. That the drain in said lands was through three depressions, one along the east side, one on the west side and one through the center, with elevations between said depressions preventing the water from crossing from one to the other. That the flow of water is from the north to the south with sufficient fall to carry off the rainfall; that in the center depression a large canal has been constructed and operated by a ditching district sufficient to drain all said lands. That for many years defendant has maintained a levee embankment on which to operate its railroad just south and through section 21, township 27, and range 15, and by means thereof did dam up and obstruct the flow of the water, and did neglect, fail and refuse to open up drains and ditches where the embankment obstructed the water to the large canal, and by reason of such failure caused plaintiffs' land to be flooded and crop destroyed to their damage in the sum of eight hundred dollars.

Answer was a general denial. Trial by jury, verdict for plaintiffs in the sum of two hundred dollars, motions for new trial and in arrest of judgment overruled, and defendant has appealed, assigning as error the action of the court in admitting any testimony under the petition, in admitting incompetent testimony on the part of plaintiffs, in refusing instructions one and two in behalf of defendant, and in giving instruction number one offered on the part of plaintiffs on the measure of damages.

The evidence on the part of plaintiffs tended to show that they had certain land on the north side of the right of way of defendant cultivated in corn in the year 1905; that this land was low, but that it had a general drainage toward the south, and that there were two sloughs which carried the water away before the building of defendant's railroad; that when the railroad was built the grade of the road obstructed these sloughs and caused the water to cover more land than it had covered before, and that sometime prior to 1905, a large drainage ditch had been dug through this land which passed through under the defendant's track at a place where a trestle had been constructed and that if defendant had dug ditches along the north side of its right of way the land where the corn was growing would have been properly drained, and that by reason of the failure to construct those ditches some twenty or thirty acres of plaintiffs' corn was flooded when it was about "hip high" and destroyed. The evidence also tended to show the value of this crop at the time of its destruction. The evidence on the part of defendant tended to show that the construction of ditches along the right of way would not have drained all of this land and also that the destruction of this crop of corn was caused by the excessive rains of that season and not by the failure of defendant to ditch its right of way.

The defendant objected to the introduction of any testimony under the petition in this case for the reason that it was not sufficient to state a cause of action, and now complains in this court that it is not sufficient for the reason that it did not allege that there was a ditch, drain or watercourse to which the water could have been drained by defendant had it constructed...