Evans v. Massman Construction Co.

DISSENTING OPINION. We cannot agree with the majority opinion herein for several reasons.

The record discloses that such overflow that is complained of may be occasioned by many causes. Under such condition the burden is upon the plaintiff to show that the injury of which he complained was caused by reason of the negligent or wrongful acts of the defendant that is charged in his petition.

We conclude that there is no substantial evidence from which it can be concluded that a dike constructed in exact conformity with the authority and plan of the government would not have caused the overflow and damage complained of. Further, when all of the evidence be considered, we conclude it does not establish the fact that the overflow and injury might not have been caused by other causes than the construction of the dike complained of, and hence plaintiff has not met the burden.

We conclude that much of the evidence in the case consists of mere speculation or guess work upon the part of the witnesses. Such evidence is not sufficient to convict the defendant of having caused the damage.

The judgment should be reversed. We conclude that the majority opinion is in conflict with Cole v. Uhlmann, 100 S.W.2d 311; Hamilton v. St. Louis-San Francisco Ry. Co., 318 Mo. 123,300 S.W. 787; Warner v. St. Louis Meramcc River R.R. Co.,178 Mo. 125, 77 S.W. 67, and we request that this cause be certified to the Supreme Court of Missouri for the reasons stated above.