Zeikle v. St. Paul & K. C. S. L. R. Co.
| Decision Date | 30 April 1934 |
| Docket Number | 17889 |
| Citation | 71 S.W.2d 154 |
| Parties | ZEIKLE v. ST. PAUL & K. C. S. L. R. CO. et al. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Ray County; Ralph Hughes, Judge.
“ Not to be reported in State Reports.”
Action by Abe Zeikle against the St. Paul & Kansas City Short Line Railroad Company and another. Judgment for plaintiff, and defendants appeal.
Reversed and remanded.
Conrad & Durham, of Kansas City, for appellants.
Wm. T Thompson, of Richmond, for respondent.
This is an action for damages caused to plaintiff’s land and crops, alleged to have resulted from the negligence of the defendant, St. Paul & Kansas City Short Line Railroad Company. There was a verdict and judgment in favor of plaintiff in the sum of $585.00, and defendants have appealed.
The facts show that prior to November, 1931, defendant, St. Paul & Kansas City Short Line Railroad Company, constructed its railroad across Crooked river, in Ray county; that the river was a natural water course running along plaintiff’s lands, draining the same; that it was very crooked, from which fact it derived its name; that in constructing the railroad said company, in bridging the stream, changed its course and channel over a distance of several hundred feet below plaintiff’s farm; that after the work had been completed the company leased the railroad to the defendant, the Chicago, Rock Island & Pacific Railway Company, which was operating it at the time plaintiff’s damages were sustained.
The facts further show that during the month of November, 1931, Crooked river got out of its banks both above and below the bridge and over about 16 acres of plaintiff’s corn and 5 acres of his clover land; that the crops were totally destroyed and that gulleys were washed in his land and piles of sand were deposited thereon, which permanently injured it.
Plaintiff’s evidence tended to show that the St. Paul & Kansas City Short Line Railroad Company had been guilty of one or all of three acts of negligence in constructing the new channel. (1st) That it had dammed up the old channel, (2nd) that it made a narrower channel which dammed up the water, and (3rd) that the new channel was not as deep as the old one.
Defendants complain of the giving of plaintiff’s chief instruction, which reads as follows:
"The court instructs the jury that if you find and believe from the evidence that Crooked River overflowed and damaged plaintiff’s crops and land or either, that Crooked River is a natural water-way and you further find St. Paul & Kansas City Short Line Railroad Company, carelessly and negligently dammed up the channel of Crooked River and caused Crooked River to overflow plaintiff’s land, or if the St. Paul & Kansas City Short Line Railroad Company carelessly and negligently dug a new channel for Crooked River which was not as deep as the old channel, and which held back the water and caused it to overflow plaintiff’s land, or you find that the St. Paul & Kansas City Short Line Railroad Company carelessly and negligently forced Crooked River into a channel which was narrower than the old channel, and which dammed up and hindered the flow of the river and caused it to overflow plaintiff’s land, and further find that any one or more of these acts of defendant caused or contributed to the causing of the overflow of Crooked River on plaintiff’s land and crops during an ordinary rainfall, then your verdict must be for the plaintiff and against both the defendants in such sum as will compensate him for the injury he has sustained."
It is claimed that this instruction entirely ignored defendants’ testimony to the effect that the new channel, as constructed, despite evidence that it was narrower or not as deep, was more adequate than the old one. Defendants in this connection point out that there is no dispute that the banks of the new channel were clean of trees and brush and that the banks and the bottom of the stream rendered smooth for the free passage of water. Defendants call our attention to evidence and testimony in their behalf tending to show that the new channel was deeper than the old and, due to its uniform construction, was more capable of drawing off flood waters; that plaintiff’s instruction was in the disjunctive and permitted recovery by plaintiff if they believed from the evidence that the new channel was narrower than the old, without considering the question as to whether the new channel was deeper and due to its uniform construction more capable of drawing off flood waters than the old channel; that in submitting negligence in reference to the depth of the new channel the jury were permitted to entirely disregard evidence of the defendants that there were factors present in the new channel which compensated for the lack of depth in the new channel.
The instruction follows the allegations of the petition and there are no affirmative defenses set up in the answer, it consisting of merely a general denial. Nor are there any affirmative defenses indicated in the evidence of either party. The evidence of the defendants, which they call our attention to in reference to the points made, amounts to no more than an effort to disprove the cause of action alleged by the plaintiff. Smith v. K. C. Public Service Co., 328 Mo. 979, 43 S.W.2d 548, 549. Therefore, it would seem that if the instruction submits all of the facts required to sustain the cause of action alleged in the petition, it necessarily takes care of all of the matters that defendants insist are left out. A reading of it shows that it, in effect, had the jury find that the differences in the depth, width and obstructive elements in the two channels were not sufficient to make the new channel adequate, for it requires the jury to find that the acts of the defendant, St. Paul & Kansas City Short Line Railroad Company, which were submitted in the instruction, caused or contributed to the overflow. However, even had the instruction failed to take cognizance of any of the so called defenses, they are fully covered by the instructions given on behalf of the defendants, and there could not have been any error in plaintiff’s instruction No. 1 on the alleged grounds suggested. Nelson v. K. C. Public Service Co. (Mo. App.) 30 S.W.2d 1044.
It is next insisted that the instruction is erroneous for the reason that its closing part consists of an instruction on the measure of damages and that the petition alleges $500.00 damages, each, to the crops and the land; that the instruction failed to separate and limit the recovery for damages to the land and injury to the crops.
Assuming that the instruction can be considered an instruction on the measure of damages, it is merely general in its scope and if the defendants desired the subjects to be submitted more definitely, it was their duty to offer a proper instruction accomplishing that object. Yarde v. Hines, 209 Mo.App. 547, 238 S.W. 151; Smith v. Mederacke, 302 Mo. 538, 259 S.W. 83, 88.
Complaint is made of the giving of plaintiff’s instruction No. 3. In this connection the evidence on behalf of the defendants tends to show that Crooked river had for years, periodically overflowed its banks and washed out the crops in the bottom lands in the vicinity of plaintiff’s lands; that the high...
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