83 Mo. App. 64 | Mo. Ct. App. | 1900
Respondent sued for damages to Ms growing garden crop on lots in the city of Hannibal, occasioned by an overflow, which he alleges was caused by the negligent construction, by appellant of its bridge over Mills Creek in said city. The premises overflowed and its surroundings as near as we are able to- describe them, are about as follows: The defendant’s road runs east and west through the city of Hannibal; the railroad track adjacent to and north of respondent’s premises is laid on a dump or fill; the respondent’s premises are a part of some low. lands lying immediately south of the roadbed; through the premises is a ditch or drainway which serves to carry the waters of a spring south and surface waters flowing in that direction from the surrounding lands and hills north; these waters pass under the roadway through a sixteen foot culvert and on into- Mills Creek near its mouth, where it -empties into Bear Creek; from this culvert one hundred or more yards west is the appellant’s bridge over Mills Creek; this bridge is one hundred and fifteen feet long, with a truss span of thirty-eight feet over the main current of the stream, the' remainder being built on three rows of piles driven into- the earth; at the span the superstructure is about four feet above the bed of the stream; from the span west the distance of the .bridge above the bed of the creek grows less and less, until it practically ceases -at the west-end; the channel of the creek at the time of the overflow was ht or near the east end -of the- bridge; at and for some distance abovethe bridge the creek had practicallyno banks and spread out to a width of one hundred feet or more; above where the banks were well defined, the width was only about thirty feet; in time -of freshets the creek above the bridge would spread out and over the adjacent low lands, including the respondent’s premises; to prevent overflows on these lands the appellant, under the supervision of the officials of the city of Hannibal, raised Lindell avenue, which laid east of
The issues were submitted to a jury, who returned a verdict for respondent for $25. After an unavailing motion for new trial the railroad company appealed.
The evidence on the part of plaintiff tended to prove that the piles on which the appellant’s bridge over Mills Creek was laid, caught debris coming down the stream, held it and caused sand, gravel and other material to form bars in the bed of the stream above the bridge and thus obstruct the flow of water and cause them to spread out, and that on the night of the overflow the piling and the superstructure caught a mass of rails, logs and brush and other debris brought down the creek and dammed up the water and caused it to flow over Lindell avenue and submerge the respondent’s premises, and that his growing garden crop was destroyed thereby. The evidence for respondent was also to the effect that the rainfall on the occasion was a very heavy one, but not unprecedented.
Tbe rain came in tbe nighttime; no eye-witness saw or testified where tbe water came from that overflowed respondent’s premises. Some of tbe witnesses for respondent testified tbat they were on tbe low lands and in tbe overflow; that a part of tbe railroad dump east of Lindell avenue was washed out; tbat when tbis occurred the waters receded in a very few minutes. If these witnesses are correct in tbeir testimony, then tbe theory that the over-flow came from tbe north of tbe track must be abandoned and tbe sliding of the track to tbe south accounted for on tbe theory tbat tbe dump was first undermined on the south side and the track slipped to tbe south instead of being forced out by tbe pressure of the water from tbe north. These were questions of fact for the jury and were properly left to it for decision. Tbe appellant contends that tbe evidence shows that tbe rainfall was unprecedented. One witness for it testified tbat by a gauge measure in bis yard tbe fall in a few hours was ten to. twelve inches. A number of witnesses testified that it was a waterspout and tbe heaviest rainfall they bad ever witnessed. Eor respondent a number of witnesses who bad lived in Hannibal or its vicinity twenty to forty years testified tbat tbe rainfall was not unprecedented; tbat on one oeccasion prior Mills Creek was two
Error is assigned for the giving of four instructions for the respondent, and the refusing of three for the appellant. But appellant has failed to point out in his brief or state on oral argument wherein any error was committed in either the giving or refusing of instructions. The third instruction, the refusal of which appellant assigns as error, is identical with instruction number 10 marked as given for appellant. We are unable to perceive any reversible error in the giving or refusing of instructions. Those given appear to us to'have presented the whole case fairly to the jury. At the close of respondent’s evidence, and again at the close of all the evidence, appellant moved the court to instruct the jury to find for defendant. These motions the court refused to grant and this ruling is assigned as error.
Erom a careful reading 'and consideration of all the evidence the testimony to our minds preponderates in favor of the defendant (appellant), but it did not so impress the jury, whose peculiar province it was to determine the credibility of the witnesses and the probative force of their testimony. The supreme law of the land has conferred this important and controlling function in the trial of law cases to the jury, and it is not in the power of the judges of courts to override the Constitution by setting aside the verdict of a jury where there is substantial evidence to support it, however strong and countervailing the opposing evidence may seem to them. There is substantial evidence to support the verdict in this case, and discovering no reversible error in the giving or refusing of instructions, or in the admission or rejection of testimony, we affirm the judgment.