Tranbarger v. Chicago & A. R. Co.

• Decision Date: 10 May 1913
• Citation: 156 S.W. 694,250 Mo. 46
• Court: Missouri Supreme Court
• Parties: TRANBARGER v. CHICAGO & A. R. CO.

156 S.W. 694

250 Mo. 46

TRANBARGER v. CHICAGO & A. R. CO.

Supreme Court of Missouri.

May 10, 1913.

1. CONSTITUTIONAL LAW (§ 133) — OBLIGATION OF CONTRACTS — RAILROADS — POLICE POWER.

As indicated by Const. art. 12, § 5, providing that the exercise of the police power should never be abridged or construed so as to permit corporations to conduct their business so as to infringe the equal right of the individual or the general well-being of the state, the state cannot barter away or lose its police power to regulate the public health and welfare, and consequently the grant of a charter to a railroad company, which permitted it to construct a solid roadbed, will not deprive the state of the power to subsequently enact laws requiring conduits and drains to carry off surface water so as to protect the health of its citizens and their crops from destruction; hence Act March 14, 1907 (Laws 1907, p. 169), even in its application to such a railroad, is a valid exercise of the police power.

2. CONSTITUTIONAL LAW (§ 101) — VESTED RIGHTS — WHAT CONSTITUTES.

Under Const. art. 2, § 4, providing that all constitutional government is intended to conserve the general welfare of the people and all persons have a natural right to life, liberty, and enjoyment, and that to give security to these things is the principal office of government, a railroad company cannot acquire by contract or prescription the right to maintain a solid roadbed which will obstruct surface waters thereby overflowing adjacent lands to the injury of their owners, for to permit the acquisition of such rights would deprive the state of its essential functions as a sovereign power.

3. STATUTES (§ 137) — VALIDITY — TITLE OF ACT.

Act March 14, 1907 (Laws 1907, p. 169), entitled "An act to amend section 1110, of c. 12, art. 2, of the Rev. St. of 1899, relating to railroad companies by inserting," etc., is not invalid for a defective title.

4. PENALTIES (§ 2) — EXCESSIVE PENALTIES.

Act March 14, 1907 (Laws 1907, p. 169), requiring railroad companies to maintain openings through their roadbeds and lateral drains and providing a maximum penalty of $500 for failure, is not unconstitutional as providing an excessive penalty.

5. STATUTES (§ 47) — VALIDITY — INDEFINITENESS.

Nor is the statute invalid for indefiniteness in failing to provide to whom the penalty should be paid.

6. APPEAL AND ERROR (§ 1002) — REVIEW — VERDICTS.

A verdict upon conflicting evidence is conclusive upon appeal.

7. WATERS AND WATER COURSES (§ 118) — SURFACE WATERS — OBSTRUCTION — INEVITABLE ACCIDENT.

Where an injury to plaintiff's crops was caused by the negligence of the defendant railroad company in maintaining a solid roadbed which provided no outlet for surface waters, it cannot escape liability for injuries caused by the overflowing of plaintiff's land from surface waters by showing that the unusual flow was caused by an inevitable accident; it appearing that its negligence co-operated to produce the injury.

8. APPEAL AND ERROR (§ 882) — PERSONS ENTITLED TO ALLEGE ERROR.

A defendant cannot complain of errors in an instruction where its own instructions proceeded on the same theory.

9. TRIAL (§ 296) — INSTRUCTIONS — CURE OF INSTRUCTIONS.

Where defendant's instructions supplied an omission in plaintiff's general instructions, the error is cured.

10. TRIAL (§ 296) — INSTRUCTIONS — CURE OF INSTRUCTIONS.

Where plaintiff's first instruction was supplementary to its second and supplied omissions therein, the defect in the second was cured.

11. APPEAL AND ERROR (§ 1066) — REVIEW — HARMLESS ERROR — INSTRUCTIONS.

In an action against a railroad company for damages and for the destruction of crops owing to the overflowing of surface waters, where the evidence showed that plaintiff's land lay all on one side of the railroad tracks, an instruction referring to defendant's duty to maintain lateral drains on both sides of the tracks, is harmless, even though erroneous.

12. APPEAL AND ERROR (§ 1050) — REVIEW — HARMLESS ERROR — EVIDENCE.

In an action against a railroad company for damages for the destruction of crops from its failure to maintain drains, the action of the court in permitting a witness to state his conclusions as to the proper place for openings through the roadbed, when followed by a specific statement of the exact point where such openings could have been constructed, is not prejudicial.

13. RAILROADS (§ 254) — CONSTRUCTION — INUNDATION OF LAND — PENALTY.

Where a railroad company had maintained a solid embankment for over 10 years, which, by damming flood waters, caused the destruction of plaintiff's crops, a penalty of $500 assessed under Act March 14, 1907 (Laws 1907, p. 169), providing a penalty not to exceed $500 for failure to make drains and openings in accordance with its provisions, is excessive and should be reduced to $100, particularly in view of the fact that the Legislature of 1909, after the injury, reduced the penalty to $200.

Lamm, C. J., and Graves, J., dissenting.

In Banc. Appeal from Circuit Court, Cole County; Wm. H. Martin, Judge.

Action by Henry A. Tranbarger against the Chicago & Alton Railroad Company. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.

The statement of facts and opinion by BOND, J., in division, in which WOODSON, P. J., and LAMM and GRAVES JJ., concurred, was as follows:

"Plaintiff's petition states, in substance, that he is the owner of 60 acres of farming land lying in Cedar City, Callaway county, Mo., in what are known as the Missouri river bottoms; that it is the habit of said river to overflow these bottoms from the west to the east in times of high water; that defendant's railroad also extends across the Missouri river bottoms from southwest to northeast and along the east line or boundary of plaintiff's land; that the roadbed of its track is constructed of a solid earth embankment, varying in height from four to seven feet, and is not provided with culverts, openings, or drains of any kind across, through, or under the same for the escape of surface water, but constitutes a solid barrier for collecting such waters and causes them to back over and flood the lands of plaintiff, which would not be overflowed except for that obstruction; that the construction and maintenance of defendant's road in this condition was had and continued for more than three months before the ____ day of June, 1908, when the Missouri river overflowed its banks and its water ran west to east across the bottoms until it reached the embankment on said defendant's right of way, which repelled it so that it backed over, across, and upon plaintiff's said land, wholly covering and flooding the same, thereby totally destroying 18 acres of corn of the value of $513, 5 acres of potatoes of the value of $450, and 12 acres of wheat of the value of $207, and damaging and injuring plaintiff to the aggregate of said sums; that this loss was suffered by plaintiff solely because of the negligent failure of defendant to construct suitable openings across and through the solid embankment on which the tracks of its railroad were laid, and suitable ditches and drains along the side of its roadbed to connect with an existing ditch which runs alongside the roadbed of the Missouri, Kansas & Texas Railway, whose track intersects and crosses the track and roadbed of defendant and would have afforded an outlet whereby the waters cast back by the defendant's embankment would have been carried off into the Missouri river or elsewhere without flooding plaintiff's land and destroying its products. The petition alleged a second cause of action by reiteration of all the pertinent averments of the first count thereof, and prayed judgment for the statutory penalty of $500 specified in section 1011 of the Revised Statutes of Missouri for the year 1899, as amended by the act of March 14, 1907 (Session Acts, p. 169), under which amended statute this suit was brought.

"The answer of defendant was: (1) A general denial; (2) a plea of inevitable accident caused by an alleged extraordinary overflow of the Missouri river; (3) the existence of its railroad and embankment in its present condition for a period of 35 years, as creating a prescriptive right against any recovery by plaintiff; (4) the unconstitutionality of the act upon which the suit was brought.

"There was evidence, positive or inferential, which tended to support all the allegations of the petition. The jury returned a verdict for plaintiff on the first count for $950, and on the second count for $500. Defendant appealed, and assigns for error the giving and refusal of instructions, rulings on evidence, and the refusal of the court to declare the statute sued on unconstitutional.

"BOND, J.

1. The first constitutional point insisted upon in appellant's brief is claimed to arise upon the fact that the railroad, now in the hands of appellant as lessee, was built in 1873 under a state charter, and neither then nor during the act of 1907 did the law require such corporations to construct outlets through their railroad beds or embankments for the flow of surface water, which kind of water was then considered a common enemy to be warded off his premises by any landowner, provided in so doing he did not collect or accumulate and cast it in a large body or unreasonable quantity upon the property of adjacent landowners. If we should concede these assumptions for the argument, yet we cannot concur in the full conclusion which is drawn by appellant, to wit, that such a state of the law became...