South Side Realty Co. v. St. Louis & San Francisco Railroad

NIXON, P. J.

I. The plaintiff attempted a cross-appeal, and its purported abstract shows the following state of facts: That on the day the jury returned its verdict the plaintiff filed a motion for a new trial setting up (1) that the court’erred in admitting evidence over plaintiff’s objections; (2) in excluding evidence offered by plaintiff; (3) in granting instructions requested by defendant; (4) that the jury failed to follow instructions; (5) that the finding of the jury is contrary to the evidence; and (6) that the finding of the jury is contrary to law. That this motion was overruled and affidavit for appeal filed and appeal granted and ninety days given within which to prepare and file bill of exceptions.

When cross-appeals are taken in any case the parties may file a joint bill of exceptions and have their transcript prepared bringing up all the exceptions to this court; or, they may file separate bills of exceptions in the trial court and each party prepare an abstract to be filed in the appellate court. [Jungeman v. Brewing Co., 38 M'o. App. 458.] Neither of these courses was pursued by the plaintiff in perfecting its appeal. It appears that there is no separate abstract of the record, and no bill of exceptions was prepared or filed by the plaintiff in this case; that while plaintiff applied for and obtained leave to file a bill of exceptions, so far as we know, none was filed. From this statement it appeai-s that no cross-appeal was perfected by plaintiff and consequently its appeal has no existence in this court, and the only course open to this court is to dismiss the plaintiff’s abortive appeal as to the finding-on’ the first and second counts of the petition, which is accordingly done.

*375 II. As is seen from the statement of the facts in this case the damages claimed are for an obstruction of Cape La Croix creek by the construction of a railroad bridge across it whereby the water of the creek was dammed ,np and caused to overflow to the injury of the plaintiff and other riparian owners. The right of the defendant to construct this bridge was a franchise granted it by law. But in the construction and maintenance of such bridge it was required to use ordinary care so that the rights of the owners of property should not be injured. The law has been long established that unless authorized by appropriate and constitutional statutory enactment, no one can in any material manner or extent interfere with the waters of running streams in such a way as to invade the rights of others. Such an interference is per se a nuisance, as calculated to produce damage, and it is a maxim of the law in regard to such streams, that the water runs, and ought to run, as it has been accustomed to run through its natural channel. [Abbott v. Railway Co., 83 Mo. l. c. 276.] Our statute has expressly authorized railroad companies to build bridges across streams in the construction of their roadbed, but it also expressly provides that such company shall restore the stream or watercourse to its former state or • to such a state as not unnecessarily to have impaired its usefulness. [Sec. 3049, R. S. 1909.]

It is claimed by the appellant that it incurred no ■ liability by reason of the damage inflicted by the floods described in plaintiff’s petition because they were unusual and extraordinary, and that the law did not require it to anticipate such injuries, and that it was consequently not required to make preparations to avoid them. A railroad company constructing its road over a watercourse is bound to leave such waterways or openings as are sufficient to afford an outlet for all water that may reasonably be expected to flow through such watercourse, taking into consideration such fresh *376 ets as might reasonably be expected to occur in view of the size of the stream, width of its bottom, height of its banks, carrying capacity, and the character of the country contributing to its flow. [Union Trust Co. v. Cuppy, 26 Kan. 754 .] It is the duty of a railroad 'company, in constructing its road across a stream, to provide a passageway sufficient to allow the passage of water from all such floods as may occur in the ordinary course of nature; but it is not liable for failing to provide for a flood which is not only extraordinary, but unprecedented, and could not reasonably hajve been foreseen. [Houghtaling v. Railroad (Iowa), 91 N. W. 811 .] And, in order to determine its liability for obstructing watercourses, the history of the country as to the flooding of its streams is to be taken into consideration. If, at the time of the construction of a railroad, extraordinary inundations have occurred within the memory of men then living, their recurrence should be anticipated and provided against. Hence, where lands have been overflowed by reason of the construction of an embankment by .a railroad company, it cannot defend, in an action to recover damages, on the ground that the damage was caused by reason of an extraordinary flood, where it appears that there was a similar overflow at a time thirty-two years previous to the one in question, and that there were two similar overflows, one nine years, and the other nineteen years before such previous overflow. [Gulf, C. & S. F. R. Co. v. Pomeroy (Tex.), 3 S. W. 722 .]

The question as to whether the defendant should have anticipated the flood that occurred .on the 15th day of February, 1908, is to be determined by the evidence in this case. The petition is in three counts, each count claiming damages for a certain distinct flood, the first for the flood of November 17, 1906, the second for the flood of December 27, 1906, and the third for the flood of February 15, 1908. Witnesses who had lived in that country many years and who were famil *377 iar with Oape La Croix creek for a period, of from twenty to thirty years testified in the case. The defendant introduced evidence tending to show that the floods described in the petition was unusual or extraordinary. The only evidence that it is deemed necessary to embody in this opinion and to call attention to is the record evidence of Prof. Shackelford, one of defendant’s witnesses. He had maintained a weather record for the years 1905, 1906, 1907 and 1908, showing the amount of rainfall in the vicinity of Cape Girardeau. This record showed the following condition as to rainfall: ' “On November 20, 1906, 1.80 inches; on Novem-' ber 21, 1906, 3.55 inches; total rainfall, two successive days, 5.35 inches. On January 2, 1907, 2.35 inches; on January 3, 1907, 2.52 inches; total rainfall, two successive days, 4.87 inches. On February 14, 1908, 1.80 inches; on February 15, 1908, 2.12 inches; total rainfall, two successive days, 3.92 inches.”

In. the face of this testimony as to the quantities of rainfall at times prior to the flood of February, 1908, there is no reasonable ground for the contention of the defendant that the rainfall on February 14th and 15th, 1908 was so unusual and unprecedented in amount that it could not have been reasonably anticipated and guarded against by the defendant; and this evidence at least presented to the jury the question whether the defendant should have known that such floods were to be expected prior to February, 1908, and we cannot say as a matter of law that the jury was not reasonably authorized in the inference they drew that the defendant should have anticipated and made due preparations to prevent the injuries arising to the plaintiff from the flood of February, 1908. The question of negligence under the evidence in this case was clearly one for the determination of the jury. [Gulf, C. & S. F. R. Co. v. Holliday, 65 Tex. 512 .] In the case just cited it was also held that in an action against a railroad company •for damages caused by an overflow as a result of the *378 alleged negligent construction of defendant’s roadbed, whether the flood during which the overflow occurred was extraordinary or unprecedented is a question for the jury.

The defendant cannot escape the consequences of its negligence because the flood was an act of God. It is a Avell-settled principle that, if the defendant’s negligence commingled with and operated as a contributive element proximate to the injury, it is liable even though such injury was due to an act of God. In order for the defendant to escape liability under the exemption afforded by law, the act of God must be the sole and only cause of the injury, and this, too, unmixed with the negligence of the defendant, for if the defendant’s negligence commingled with it in the loss as an active and co-operative element, and the loss is proximate thereto, or, in other words, is a reasonable consequence of the negligent act, it is regarded in law as the act of the defendant rather than as the act of God. [H. A. Johnson & Co. v. Springfield Ice & Ref. Co., 143 Mo. App. 441 , 127 S. W. 692 ; Brink v. Railway Co., 17 Mo. App. 177 ; Standley v. Railroad, 121 Mo. App. 537 , 97 S. W. 244 ; Murphy v. Gillum, 73 Mo. App. 487 .] This rule of law was again declared by this court in the case of Booker v. Railroad Co., 144 Mo. App. 273 , 128 S. W. 1012 , as follows: “The rule of law applicable to

such cases has been often declared, and is to the effect, that if the defendant’s negligence concurs with the act-of God, in point of time and place, or otherAvise so directly contributes to plaintiff’s damage that it is reasonably certain that the other cause would not have sufficed to have produced the injury, then the defendant is liable, notwithstanding he may never have anticipated the . intervention of superhuman force.” [See, also, Pruitt v. Railway Co., 62 Mo. 527 ; Moffatt Com. Co. v. Railroad, 113 Mo. App. 544 , 88 S. W. 117 ; Davis v. Railway Co., 89 Mo. 340 , 1 S. W. 327 .]

*379 The instructions given by the court in this ■ case substantially declared the law as it is announced in the above authorities.

W. C. Balm, who was well acquainted with the bridge, testified: “The probability of the girder in this bridge acting as a dam or obstruction to the water would naturally appear to anyone looking at the bridge. I computed the number of square feet in the space below the girder and the number of square feet in the surface of the girder which was Avithin the banks of the creek. There are 228 square feet in the space between the girder and the bottom of the creek and 230 square feet in the girder itself included within the banks of the creek.” It will be seen from this testimony that this girder obstructed the natural flow of the stream through its channel to the extent at least of nearly one-half of the channel. The evidence is beyond question that the 'defendant was warned of the condition of its bridge and the extent to which it was obstructing the flow of the stream, and that such bridge was causing injuries to the property owners aboVe the bridge. In a letter written to defendant by plaintiff on November 24, 1906, attention was called to the condition of this bridge across this creek, and defendant was therein notified that the same was so constructed as to interfere with the large volume of water which floA\rs through the creek in its natural course, and that during and after heavy rains, this bridge caused a large amount of damage to property along and near the creek on account of the creek being flooded, caused by the breaking of the water for the want of a proper outlet across defendant’s right of 'way. And it was further distinctly stated in this letter that plaintiff and other riparian owners had suffered great damage. To- this communication the defendant on December 30, 1906, made the following reply: “Referring to your several communications with reference to overflows of La Croix creek, we will immediately place an order for an additional span, and *380 make an increased waterway, sufficient to take care of all water carried by this creek, and will push its delivery to the utmost, and you can be assured of its installation without any more delay than is usual with work of this kind.” On June 19, 1907, plaintiff again wrote defendant as follows: “On January 30,1906, you advised us that you would put another span across Cape ■ La Croix creek. By your failure to do so we have been damaged considerably by rains on our property caused by the overflow, and which in addition has hurt the sale of our property. We have not sold a lot on this property since the overflows to which prospective purchasers find objection.” To this defendant on June 30, 1907, replied: “Your favor of June 19th with reference to the Cape La Croix creek situation: We have a new structure ordered, and Mr. Brown will within a very •few days commence making necessary changes in the foundations so that the bridge can be installed immediately on its arrival.” Yet, notwithstanding these repeated warnings, the defendant failed to afford the plaintiff and other property owners the relief from overflows which it had so often promised.

As the evidence tended to show, the railroad bridge at the Cape La Croix crossing was supported by a massive iron girder, five feet wide and forty-six feet long; that it rested upon two bents of piling, each some sixteen inches thick and driven into the bed of the stream; that the bridge was so constructed that the girder extended down between the banks four and one-half feet and reached nearly from bank to bank. After the correspondence between the parties as to the insufficiency of this bridge, during the year 1907, the defendant, pursuant to its agreement, commenced to alter said bridge; in doing this, defendant moved the iron girder from under the bridge, but, instead of removing it from the watercourse so as to prevent the damming of the water and the injurious results occasioned by the overflows, left it practically in the same condition as an ob *381 struction across the stream. It was neither lifted nor lowered, hut was moved a few feet so that it stood at the eastern edge of the bridge, but disconnected from it, and it furnished no support or strength to the bridge as it had been wholly detached from it. And defendant failed to remove the bents of piling after the alteration was made, notwithstanding they were wholly useless as a part of the bridge. The girder, after its removal, still reached from bank to'bank, its upper side being about level with the tops of the banks and its body extending down into the watercourse four and one-half feet, so that it still constituted practically the same obstruction to the flow of the stream as it had prior to its detachment from the bridge; and when the water rose in the stream these obstructions still acted as a dam and caused increased overflow’s over the land adjacent to the watercourse.

Under this evidence it is sufficiently demonstrated that the defendant, wdiile exercising the privilege granted by the statute, disregarded the duty the law enjoins and so obstructed this stream as to reduce to one-half its capacity for carrying off the wmter. Not only that: After the consequences of the construction of the bridge were knowm to the defendant, it continued to maintain the bridge or girder across the channel of the stream and continued to maintain the obstruction after repeated requests to provide an increased water-wray and repeated promises on its part to do so, so as to protect the plaintiff and other property owners. But in this work of changing the bridge it moved the massive girder from beneath the bridge, leaving the same and the bents of piling to remain in the watercourse for a considerable period of time and it wras in that condition at the time of the flood in February, 1908. The evidence tends to show7 that there was no reasonable excuse for this delay; that the girder could easily have been raised and supported above the flow of the w’ater, and there is no evidence in the record to show *382 that defendant could not have removed the piling so as not to constitute an obstruction to the flow of the water. We think the liability of the defendant sufficiently appears from the evidence to authorize a judgment for the damage occasioned to the plaintiff. The facts sufficiently show that the defendant acted in disregard' of the property rights of the plaintiff. There devolved upon the defendant corporation the fundamental obligation of all ownership' which finds its expression in the maxim, “Sic utere tuo ut alienum non laedas.” As said by Mr. Justice Field in Baltimore, etc., R. Co. v. Fifth Baptist Church, 108 U. S. 331 , 26 L. Ed. 739 : “Grants of privileges to corporate bodies confer-no license to use them in disregard of the private rights of other persons. The great principles of the common law, which is equally the teaching of Christian morality, so to use one’s property as not to injure others,’ forbids other application or use of the rights and powers conferred.”

III. The appellant, however, contends that the damages awarded plaintiff — $1000—are excessive. That in its petition it claims damages in the first count for the overflow of November 17, 1906, in the sum of $1000 for restoring the soil washed away and expenses in endeavoring to protect the premises from further over-, flows; that in the second count of the petition, which was for the overflow of December 27, 1906, the plaintiff claims damages in the sum of $1000 because hindered and delayed1 in the use and improvement and rental of the said premises and because it would be put to great expense in restoring the soil washed away by the water and had been put to great expense in endeavoring to protect the premises from further overflow; that in the third count plaintiff claims damages for the flood, of February 15, 1908, in the sum of $1000 for expense it had been put to in restoring the soil washed away by the water, and had been put to great expense in en *383 deavoring to protect the premises from further overflows, and to the use, improvement and sale of the property. The jury, having found on the first count for the defendant, the plaintiff cannot recover on the third count for damages caused by the flood of November 17, 1906; likewise, the jury having found for the defendant on the second count, the plaintiff cannot recover on the third count for the damage done by the overflow of December 27, 1906.

The general rule of damáges is that the person suffering the damage is entitled to be compensated for all loss caused by the wrong or injury; and in actions for tort, the genera] rule is that the wrongdoer is liable for all injuries resulting directly from the wrongful acts, whether they could or could not have been foreseen by him, provided the particular damages are the legal and natural consequences of the wrongful act, and are such as according to common experience 'and the usual course of events might reasonably have been anticipated. The general rule as to the measure of damages in actions for injuries to real property is the difference in value before and after the injury to the premises. gome courts have held that where soil has been excavated or carried away by the wrongful act of another, the party injured is entitled to the cost of restoring it to its former condition. In this state it has been held that in actions for damages to real property caused by an overflow, the measure of damages to the land itself is the difference in value of the land before and after the flood by reason of the particular injuries; and, as .to houses or fences, their actual value is the measure of damages, guch value is measured by the sum which would be properly expended to restore the premises to their former condition. If the destruction of the houses or fences or other erections on the premises interfered with the beneficial enjoyment of the premises, then, in addition to the value of the property destroyed, the loss of rental value for the time it would take to re *384 store the improvements should be awarded. [Graves v. Railroad, 69 Mo. App. 574 ; St. Louis Trust Co. v. Bambrick, 149 Mo. 560 , 51 S. W. 706 .]

The evidence herein tended to show that prior to the last flood plaintiff had constructed a levee along the creek in order to protect the land from overflow which cost between thirty and forty dollars; but, as the evidence did not show that the third flood injured this levee to any material extent, no recovery could be had for that. There was evidence tending to show that plaintiff had constructed a four-room frame house on the property costing about |425 which it rented at eight dollars a month. It appeared, however, that the tenant stayed in the house until After the third flood and moved out sometime in the year 1908, the plaintiff having sold the house before the tenant moved out. As this house continued to rent at the rate of eight dollars a month for some eight months after the third flood, it is not apparent that plaintiff sustained damage by reason of loss of rent on the house. The evidence tended to show also that by reason of the three floods some 900 cubic yards of earth was washed away from plaintiff’s land. On examination after the first flood, the evidence showed, about 400 cubic yards had been washed away. The second flood increased the depth of the channel that previous floods had washed out, cutting deeper and wider, and washed it out farther north, and this flood washed out some 200 cubic yards or more. The evidence further shows that the third flood caused additional damage to the land; that the ditch on plaintiff’s land was washed farther down and farther north and was made wider and deeper, and that possibly 250 cubic yards more of soil was washed away. It further appeared that it had cost the plaintiff forty cents a cubic yard to restore the earth. The evidence further showed that the plaintiff corporation was organized and engaged in buying and selling real estate and erecting houses; that after it purchased this tract of land, it laid it out in blocks and lots, *385 in all, five blocks and ninety-one lots. This was in July, 1906, Prior to the first .flood, plaintiff sold eight of these lots; between the first and second flood none were sold;. between the second and third flood' eight lots were sold; from the time of the third flood to the time of bringing suit no sales were made. The evidence tended to show that after the first flood the plaintiff continued building houses and selling them on the instalment plan or renting them; that before the first flood the property was available for building houses thereon ánd for improvement, and the evidence tended to show that all the houses put up could have been rented and were available for renting purposes. The agent of the plaintiff1 who was instructed with the sale of these lots testified as to the effect the flood had upon the salability of these lots and stated that one of the principal reasons the lots quit selling was on account of the floods. He further stated that they had sold no lots after the third flood, but he did not know whether or not it was the flood of • 1908 that prevented their sale.

Under the evidence no data is furnished by which, under legal principles, the amount of plaintiff’s damages by reason of the failure to market its lots can be ascertained. Nor is it made to appear to what extent the failure to sell the lots was due to the several overflows, separately, or all combined, much less as to how much of such damage accrued to plaintiff by reason of the third flood to which alone the verdict of the jury limited plaintiff’s recovery. It will thus be seen that the evidence offered failed to show the special damages to the sale of the lots caused by the third overflow. Prom the evidence adduced it does appear that the verdict of $1000 was clearly in excess of the damages to which the plaintiff was entitled by reason of the third overflow.

*386 IV. Some objections were made by tbe defendant and exceptions saved to tbe action of tbe court in admitting evidence, but a careful review of tbe whole record shows no materia] error in this connection.

For the reason above stated, tbe judgment is reversed and tbe cause remanded.

All concur.