Wells v. Payne

• Decision Date: 07 November 1921
• Docket Number: No. 13946.,13946.
• Citation: 235 S.W. 488
• Parties: WELLS v. PAYNE, Agent.
• Court: Missouri Court of Appeals

235 S.W. 488

WELLS v. PAYNE, Agent.

No. 13946.

Kansas City Court of Appeals. Missouri.

November 7, 1921.

Rehearing Denied December 15, 1921.

Appeal from Circuit Court, Platte County; A. D. Burnes, Judge.

"Not to be officially published."

Action by John H. Wells against the Chicago Great Western Railroad Company and Walker D. Hines, as Director General of Railroads, which was subsequently dismissed as to the company, and in which John Barton Payne, as Agent for the President of the United States under section 206 of Transportation Act (41 Stat. 461), was substituted for the defendant Hines. Judgment for the plaintiff, and the defendant appeals. Affirmed.

Jas. H. Hull, of Platte City, and R. A. Brown and R. L. Douglas, both of St. Joseph, for appellant.

Terrence Riley, of Weston, and Guy B. Park, of Platte City, for respondent.

ARNOLD, J.

This is a suit in damages from an overflow of plaintiff's premises, alleged to have been caused by negligence of defendant.

Plaintiff resided in Woodruff, a small town located on the line of the Chicago Great Western Railway Company in Platte county, Mo. At the time of the alleged overflow said railroad was being operated by the Director General of Railroads, of the United States. Plaintiff was the owner of a small tract of land in the town of Woodruff, upon which was located his residence, and upon which he kept certain live stock and poultry.

The tracks of the Chicago Great Western Railroad extend north and south through the town of Woodruff, just east of plaintiff's premises. They were upon an embankment from 6 to 8 feet in height; and some distance north of plaintiff's premises Bee creek ran from west to east under the railroad tracks. The said creek on the west side of the tracks ran from the north in a southerly direction, crossing under the tracks practically at right angles from its general course west of the tracks; and on the east side of the tracks it resumed its southerly course. The tracks across Bee creek on a bridge 117 feet in length, supported at each end by stone abutments. The center of the bridge was 17 feet from the top of the ties down to the low level and the space underneath was partly obstructed by dirt. Below the tie level were 8 feet of steel, two sets of girders about 4 feet apart. Some of the girders ran longitudinally, and others at right angles with the bridge. Both abutments of the bridge were on the outside of the natural embankment of the creek.

About one-half mile south of the Bee creek intersection of the right of way of defendant was a small, unnamed stream flowing from west to east, which was also crossed by defendant's railroad, over a culvert 6 by 9 feet. The railroad embankment, between the two creeks was about 6 to 8 feet in height, and the only opening through this embankment between the two creeks was a 30-inch tile almost directly east of plaintiff's premises. Separating plaintiff's property from the right of way was a public highway, which was also upon an embankment some 3 or 4 feet in height, and through which the county had placed a 30-inch tile culvert.

At one time an old mill race had extended from Bee creek west of the railroad bridge in a southeasterly direction and near plaintiff's residence. It carried no water excepting surface drainage, which was carried under the railroad tracks by means of the tile culvert above mentioned.

The natural slope of the land west of the railroad embankment is to the south or southeast, and toward the railroad embankment. There were no ditches on either side of the railroad embankment parallel therewith. Where the mill race emptied into what is now the railroad right of way, and where the 30-inch tile is located, is a piece of low ground, or hole, covering about three-fourths of an acre, caused by excavation in building the railroad embankment.

The petition alleges that in March, 1919, and during ordinary rains common to that locality, and by reason of the water overflowing from Bee creek, the waters were gathered on the west side of defendant's railroad embankment and held and forced upon the premises of plaintiff, and that other waters falling and coming down upon plaintiff's said premises, and being obstructed by defendant's said embankment, were "caused to be dammed up and to flow, stand, be, and remain on said premises of plaintiff without any outlet or means of escape therefrom." The damages alleged are as follows:

"Four dozen chickens of plaintiff of the value of $40 were washed away, drowned, and destroyed, a jack of plaintiff's of the value of $500 was damaged $200 by having to stand and remain in said waters and contracting a cold and disease therefrom; household furniture belonging to plaintiff was damaged by being water-soaked, stained, and covered with water in the amount of $300, the blue grass lawn of plaintiff, on said premises, was washed, covered, and destroyed by said waters, to his damage in the sum of $300, and the buildings on said premises belonging to plaintiff were thereby damaged in the sum of $300; and the said lands of plaintiff were washed and cut by said waters and thereby damaged in the sum of $300."

Negligence in alleged in the petition as follows:

"Plaintiff further states that said damage was caused by the negligence of defendant in failing to cause to be constructed and maintained suitable openings and drains across and through said right of way and roadbed, as aforesaid, and the negligent failure of defendant to construct and maintain suitable ditches and drains along the sides of its said roadbed and embankment to connect with ditches and drains or some water course so as to afford sufficient outlet to carry off said waters upon plaintiff's said premises as aforesaid, and rendered necessary by the construction of said roadbed and embankment as aforesaid; and by the negligent and careless construction and maintenance of the said culvert across Bee creek and the said culvert across said small, unnamed stream as aforesaid, and the negligent and careless acts of defendant in suffering and permitting the said culverts, and each of them, to become filled and obstructed with dirt, brush, rubbish, and other substances as aforesaid."

Defendant, the Chicago Great Western Railroad Company, demurred to the petition, setting up misjoinder of parties defendant, end that the petition fails to state facts sufficient to constitute a cause of action; which said demurrer was by the court overruled.

The answer admits the Chicago Great Western Railroad Company is a corporation, and that it owns the railroad through Woodruff, Mo., and that the same was operated by Walker D. Hines, Director General of Railroads, in March, 1919, and denies each and every other allegation in the petition. And as further answer defendant alleges that, if plaintiff's property was damaged as alleged in the petition, the said damage was caused solely by one or more of the...