Cooper v. St. Louis, Memphis & Southeastern Railway Co. , 1907 Mo. App. LEXIS 287 ( 1907 )

BLAND, P. J.

(after stating the facts) — Í. At the close of plaintiff’s evidence and again at the close of all the evidence, defendant moved for a peremptory instruction to the jury to find for defendant. The contention is that the refusal of the court to grant these requests is erroneous in that the petition fails to state a cause of action for the reasons: first, the petition failed to allege that the construction of the roadbed obstructed the natural flow of surface water; and second, it fails to allege that there were ditches, or drains, or natural watercourses, into which said obstructed surface water could have been carried by lateral ditches constructed along the west side of the roadbed. The petition alleges the roadbed, as constructed, dammed up the swale, depression, or natural drain, and thereby obstructed the natural flow of the surface water, therefore, there is no merit in the first objection. In respect to the other objection, the petition alleges that defendant “failed, refused and neglected to dig or construct along the side of its said dump any lateral ditch or drain to conduct said surface water as aforesaid from the property of the plaintiff to a certain natural drain or watercourse which crosses and did at all times herein mentioned, the track of the defendant some quarter of a mile below plaintiff’s said property, which said natural drain or watercourse would have been and still is amply sufficient to have carried off all surface water so deflected upon the property of the plaintiff.” While it is not stated in so many words, that ditches, had they been constructed, would have conveyed the surface water to the natural drain mentioned in the petition, the inference, from what is stated, is that they would have done so, and this inference should be drawn in support of the judgment. ’ And we think the allegation was sufficient to let in the evidence of plaintiff’s witness, Farmer, who testified, over the objection of defendant, that if the ditches had been constructed, they would have carried the surface water from plaintiff’s land to the natural drain mentioned in the petition and described in the evidence as a slough.

2. The slough, to which plaintiff’s witnesses testified a ditch could be dug to carry off the surface water, the evidence shows, is what the witnesses call “the Red Sea,” described as a slough or pool of water. What outlet, if any, the Red Sea has is not stated in the evidence, and defendant contends that as it is described as a pool of water, it is neither a watercourse drain, or ditch into which surface water might be drained, and for this reason plaintiff cannot recover.

Section 1110, R. S. 1899, upon which the action is bottomed, makes it the duty of railroad companies, within three months after the completion of their roads through any county in the State “to cause to be constructed and maintained suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains, or watercourses, so as to afford sufficient outlet to drain and carry off the water along .such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad.” Under the statute, it is immaterial whether the receptacle of the surface water to flow through the railroad ditches is a running stream, another ditch o>r a body of water, as for instance, a lake, if it is adequate to receive the water, and therefore furnish an outlet for the surface water from the territory drained by the railroad ditch or ditches.

3. For plaintiff, the court instructed the jury that if they found from the evidence the “defendant failed, refused and neglected to dig or construct along the sides of the said dump, as aforesaid, as required by statute any lateral ditch or drain to conduct said surface water, as aforesaid, from the property of the plaintiff,” etc., they should find for plaintiff. The instruction committed to the jury the judicial function of reading and interpreting the statute upon which the action is grounded. This was palpable error, calling for a reversal of the judgment, [Cockrell v. McIntyre, 161 Mo. 59, 61 S. W. 648; State v. Hardelein, 169 Mo. 579, 70 S. W. 130; Hulett v. Railway, 80 Mo. App. 86; Goodson v. Embleton, 106 Mo. App. 1. c. 83, 80 S. W. 22.]

The judgment is reversed and the cause remanded.

All concur.