| Mo. Ct. App. | Apr 3, 1905
The plaintiff is the owner of land near defendant’s line of railway. The petition is in two counts. In the first he charges that the land was overflowed in consequence of defendant’s construction of its road over the bed of the branch. In which construction an iron pipe was placed for the water to pass through and the bed of the said road made solid around the pipe. That this pipe was too small for the free discharge of water resulting from ordinary rainfalls. Furthermore, that defendant permitted weeds, cornstalks, fence rails and other debris, which was washed down and found lodgment in the pipe, to remain there and thereby dam up the water. In consequence of these things plaintiff’s land was overflowed.
The second count charged a failure to dig and construct lateral ditches as required by law, whereby plaintiff’s land might have been drained. There was a verdict for plaintiff on the first count.
Much evidence was heard at the trial and we have been favored with maps, elevations, measurements and diagrams of the roadbed and the surrounding country at the place in controversy. After an examination of the record we find the whole case turns on matters of evidence.
The court in instruction numbered two submitted to the jury the question whether defendant permitted the pipe “to become and to remain choked and obstructed with weeds, brush and debris, logs and sticks, and that defendant knew or by the exercise of ordinary care, could have known of such choked condition of said pipe,
There is no evidence preserved in the record upon which to base that instruction and it was therefore error to give it. The suggestion made by counsel that such error was cured by instruction number nine for defendant is not sound. Nor do we think plaintiff in situation to call to his aid that part of the statute (section 865, Revised Statutes 1899), which declares that a judgment should not be reversed on account of an error which did not materially affect the merits of the action. The nature of the evidence was such that the jury finding the instruction, quoted above, given for their direction, might well conclude that the court believed the evidence on the subject of obstructions in the pipe tended to support the hypothesis submitted in the instruction that defendant had negligently permitted the pipe to remain clogged and obstructed after knowledge of such condition. It was harmful error for which the judgment must be reversed and the cause remanded.