151 Mo. App. 338 | Mo. Ct. App. | 1910
Lead Opinion
Plaintiff’s action was instituted to recover damages for the destruction of his crops of corn and-wheat. He recovered judgment in the trial court.
It appears that plaintiff was occupying a farm in the Missouri River bottom and that defendant built a line of'railway just east of plaintiff’s land, and also-a “spur” connected with the main line. The road crossed two creeks which “headed” up in the bluffs to the east and ran through the bottom land emptying into the Missouri River off to the west. The road was built by constructing an embankment and where it crossed these creeks concrete culverts were put in. Plaintiff charges that these culverts were not of sufficient dimensions to let the water through which came from ordinary rains and that debris and mud was stopped by them so as to partially choke them up. Defendant seems to have realized that the culverts were, of themselves, not sufficient, for it put a large tiling (about
. The first count of plaintiff’s petition charges that in the fall'of 1906 plaintiff had fifteen acres of matured corn cut and shocked on his land1 which was destroyed by the water cast upon his land through the tiling aforesaid.
The second count is in great part a repetition of the charges in the first count concerning the building of the road and putting in the culverts at the crossing of the two creeks and the large tiling midway between, to which the waters dammed at the two culverts would flow and escape through onto plaintiff’s land. It likewise charged that the drains could have been made leading portions of the water off by way of what is called. “Stilling’s ditch.” It then charges that in the summer of 1907, “up to and for ten days or two weeks after the 15th day of July, 1907, ’ ’ water was thus cast upon and destroyed sixty acres of wheat.
The third count was for the destruction of the same crop of wheat, but was based on section 1110, Revised Statutes 1899 (Laws 1891, p. 82, amended Laws 1907, p. 169) requiring railway companies to construct ditches and drains.
The damage under 'the first count was assessed at one hundred dollars. There was one finding on the second and third counts, the damage being assessed at four hundred dollars.
There was ample evidence to sustain the case charged by the plaintiff as well as to justify the amount of damages returned by the jury. "We have, therefore.
There was evidence tending to show that the water in the smaller of the two creeks was not obstructed by the culvert as charged by the plaintiff, but that the obstruction came from a wire fence which, defendant constructed across the creek just east of the culvert, which diverted the waters of this creek down to the tiling placed under the embankment. Defendant here, relying upon the well known rule of law that h recovery can only be had for and on account of the negligence charged, says it was error to consider the evidence showing any negligence not alleged in the petition. But defendant did not object to the evidence as to the fence. If it had objected on the ground that it was negligence not set up in the petition, the objection would, doubtless, have been sustained. The point cannot be made for the first time in this court. An answer might be made to this view, that notwithstanding no objection was made to admitting the evidence, yet plaintiff should not have asked an instruction submitting the hypothesis of water being obstructed by the culvert in the smaller creek when the real obstruction was the fence and not the culvert. But the evidence did show that the water from that creek did run down to the tiling and thence, with the water from the other creek, onto plaintiff’s land. The only point of criticism which can be made is that this water was turned in that direction by the wire fence across the creek, instead of the culvert a few feet further on. Since the evidence concerning the fence was admitted without objection and since it is manifest that no possible harm resulted, from submitting the culvert instead of the fence as one of the obstructions we cannot see any good reason in reversing the judgment on a matter which by no possibility could have affected the result.
What we have just written disposes of some principal objections to the instructions. As a whole they
It is claimed that the motion in arrest of judgment should have been sustained for the reason that on the second1 and third counts in the petition ‘there was but one general verdict. But these counts were for one and the same cause of action. In such case a general verdict is not improper. On the first count, which was for the destruction of the corn in the fall of 1906, there was a separate verdict. The second and third counts were for destruction of the wheat in the summer of 1907, and the verdict was: “We, the jury, find for the plaintiff on the second and third! counts in plaintiff’s petition, and assess his damage at the sum of four hundred dollars.” The objection is not well taken. [Brownell v. Ry. Co., 47 Mo. 239; Terry v. Ry. Co., 89 Mo. 586; Zellars v. Missouri Water & Light Co., 92 Mo. App. 107, 114.]
As respects its application to- this case, there was no material change made in the statute (sec. 1110, R. S. 1899, Acts 1891, p. 82) by the amendment in Acts 1907, p. 169, and we do not find any merit in the complaint as to contradictory instructions.
Nor do we see that any just criticism has been made of the instructions upon the measure of damages. The cases cited by defendant are not applicable. Here, the crops destroyed, for which damages were to be allowed as stated in the instructions, were matured crops.
We have gone over the entire record and find that all the criticism on the judgment is based upon objections wholly technical. The merits of the case seem altogether on the side of the plaintiff. It is a case where that section of the statute applies which forbids us to interfere where no error has been committed materially affecting the merits of the action. Hence we affirm the judgment.
Rehearing
A re-examination of the record and briefs has convinced ns that a proper disposition of the case was made in the foregoing opinion. Counsel for defendant earnestly insist their position is well taken, i. e., that the action should fail because of a vital difference between the allegations of plaintiff’s petition and! his proof. We give full effect to the rule that where the petition grounds a cause of action ex delicto on specific causes or acts of negligence, the plaintiff must recover, if at all, on the proof of the precise causes or acts ■averred; but, obviously, that rule should not be applied to acts or facts that are merely incidental and have no true place in the chain of casual events. The gravamen •of the present action was the collection by defendant •of surface water which, but for defendant’s interference, would have flowed off in the two natural water courses mentioned and1 the precipitation of such water in a body on plaintiff’s land. The means by which this result was accomplished were the two inadequate culverts and the drain pipe installed midway between them for no other conceivable purpose than to drain, off the surplus water which the deficiency of the culverts would cause to accumulate on the east side of the railroad embankment during heavy rains.
So far as the purposes of this case are concerned, the two culverts and drain pipe constituted a single ■construction, the practical office of which was to drain off surface water only in a way that would injure the land on the west side of the track. The whole construction constituted a single act of negligence, and that act clearly was the prime cause of the injuries inflicted on plaintiff’s land in 1906 and 1907. It is wholly immaterial that no water backed up from the -lower ■culvert in the storm of 1906 and that all of it came from the upper stream and purely incidental is the fact — if it •be a fact — that no water would have been sent to the
The very fact that defendant found it necessary to put in the drain pipe was a confession that the- culverts were not properly built and amounted to a declaration of defendant’s purpose to relieve its own property of the consequences of its own blunder in a way necessarily injurious to its neighbors. The judgment in this ease is so manifestly for the right party that we would do wrong to disturb it on grounds so technical as those urged for a reversal. The judgment is affirmed.
