121 Mo. App. 537 | Mo. Ct. App. | 1906
The plaintiff’s suit is to recover damages for the loss of his growing crops in the years 1903 and 1904, which he alleges were the result of the negligent construction of defendant’s bridge across Little Wakenda creek. He alleges in his petition that at the times mentioned he was the owner of about one hundred and thirteen acres of land, thirty-five of which were bottom land, situated one-third of a mile northeast of said bridge, the defendant’s right of way forming its southern boundary. Cottonwood creek and Chapman branch run through and join on plaintiff’s land and empty into Little Wakenda creek a short distance north of defendant’s said bridge. The bridge was constructed in 1895, the abutments consisting of rock and cement and built on the inside of the banks of the stream. Prior to the construction of the bridge in question there was a bridge built on piles at said point one hundred and eighty feet long, which was replaced by the said bridge complained of.' When the iron bridge was built the piling of the old bridge was chopped off several feet above the surface of the bed of the stream; and all the trestle except the space between the abutments of the new bridge was replaced by an earth embankment. In constructing the abutments for the bridge in controversy, the dirt excavated for that purpose was thrown into the creek, a part of which lodged on the bank and part falling into the stream under the bridge. Several carloads of rock were put into the stream by defendant for the purpose of protecting the foundations of the abutments.
There was evidence that the dirt and rock mentioned raised the bed of the stream four or five feet and that
It was claimed, and there was evidence to that effect, that as a result of such obstruction plaintiff’s bottom land in May, 1903, and June, 1904, was covered by water several feet deep which in each instance remained on the said land from ten to twelve hours. It was also shown that prior to the erection of the new bridge only a few acres of said land overflowed and the water remained only four or five hours, and that there had been many rains when as much water fell, before the later bridge was erected, as fell in 1903 and 1904. And it was shown that in June, 1904, the water on the north side of defendant’s track was nearly three feet higher than it was on the lower side of the bridge. The plaintiff lost by reason of said overflow a part of his crops and Ms land Avas placed in bad condition by reason of the fact that the flood left thereon mud, logs and other debris. The testimony was to the effect that plaintiff’s damages ranged from $150 to $300. The jury returned a verdict in his favor for $175. The defendant appealed.
Defendant raises questions as to the competency of testimony introduced on the trial and assigns as error the giving, and the refusal by the court to give, certain instructions to the jury; and further contends that upon the whole case the court committed error in not directing the jury to return a verdict for the defendant as requested.
The position of defendant is that: “Opinions, conclusions and deductions as to existing conditions, and opinions or predictions as to future happenings, are alike incompetent when applied to physical facts which can be described to the jury. Such expressions usurp the province of the jury.” ' In support of this proposition, defendant cites many decisions, among which are the following: Madden v. Railway, 50 Mo. App. 666; Graney v. Railway, 157 Mo. 666; Nash v. Dowling, 93 Mo. App. 156; Schermer v. McMahon, 108 Mo. App. 36. While the plaintiff accepts this proposition as true as a general rule, he claims that exceptions are made in certain cases of which this is one. It is said: “The general rule is that non-expert witnesses must state
The question put to witness Smith, that if there had been no obstruction of the creek by defendant whether
The evidence was to the effect that the floods in question were of an extraordinary character. It is conr tended by appellant as a general proposition, and so conceded by respondent, that the defendant was not liable for the destruction of crops as the result of such flood, it being what lawyers call the act of God.. But the plaintiff invokes another rule, viz.: Where there is . negligence concurring with the act of God, and but for such negligence the injury would not have occurred, the
The defendant complains of the action of the court in refusing to instruct the jury as folloAvs: “The jury are instructed that defendant under the laxv was not required to make provisions for surface water, either by culverts, trestles, or in any other manner, and if the jury believe from the evidence that plaintiff’s injuries, if any, Avere caused by surface water, then the jury will find for defendant.
“Surface waters are such as are not flowing or contained in a regular stream or watercourse. Whenever Avaters escape from a watercourse and are flowing over fields or lands where they are not accustomed to flow, the said waters become surface waters and a railroad company is not under obligations to> provide for the escape thereof.”
It is contended that instruction ■ numbered four of plaintiff is contradictory of that of defendant numbered two. We have come to the conclusion that when carefully compared and analyzed they are not in conflict, and that each asserts a proper declaration of law as applicable to the case. Instruction numbered eleven was properly overruled, as there was no claim for damages caused by tbe erection of defendant’s roadbed and embankments. Instruction numbered three given for plaintiff we do not think is faulty, but on tbe contrary clearly states tbe law of the case.
Affirmed.