Culver v. Chicago, Rock Island & Pacific Railway Co.

Gill, J. —

In answer to points 1, 2 and 3 of defendant’ s brief, we must say that, upon reading the record, we cannot concur with the learned counsel in the statements made, to-wit, that there was no evidence to support 'the verdict, and that plaintiff had departed from his case set out in the petition, had set up one alleged cause of action, and had introduced evidence to support only another and different cause of action.

The matters complained of, as resulting in the damaging overflow in 1885, and as set out in plaintiff’s petition are : The faulty construction of the bridge, or trestle, over Lost creek, — the continuance of said construction, and permitting logs, drift-wood, dirt, etc., to add to such obstruction during the period of defendant’s ownership and control of the railroad, resulting in the entire closing of the creek’s channel, in the year 1883, by and through the action of defendant company. These, it is alleged (and the evidence tends, at least, to prove), caused the overflowing of plaintiff ’ s premises in the summer of 1885, and the damage thus occasioned is sued for in this action.

Whether the injuries to plaintiff’s property.resulted from one or the other of these negligent acts, or both combined, it would seem that plaintiff should' recover. Even, then, if the bridge itself was not negligently constructed in the beginning, yet, if the defendant subsequently suffered the channel to become stopped up, and did fill up the same, and thereby caused the water to flow back. on the plaintiff’s premises, then the defendant was liable. Brink v. Railroad, 17 Mo. App. 191.

The Chicago and Southwestern Railroad, in constructing said road, had, it is true, lawful authority to build the road over and across said stream, still, in so doing, it was in duty bound to “restore the stream thus intersected to its former state, or to such state as not necessarily to have impaired its usefulness.” R. S. 1879, sec. 765.

II. Defendant further complains of the refusal by the trial court of its seventeenth instruction, which was an attempt to bar this action by the statute of limitations", —said instruction reads as follows: “17. This suit was commenced on the sixteenth day of December, 1887. The jury are instructed that, if for more than ten years before the beginning of this action, the channel of Lost creek, under the bridge described in evidence, and on the south side of said railroad, on defendant’s right of way, and on lands adjqining thereto, was, and continued to be, filled up and obliterated so that the waters of said creek formed a new channel on the north side of said railroad, where the same had flowed continuously for ten years prior to the commencement of this suit, then the plaintiff cannot recover in this case.”

We very much doubt the propriety of this instruction, even considered with reference to the admitted f&cts of this case. The evidence stands undisputed that the growth of this creek obstruction was not • complete until in the year 1883, when defendant completed the filling up process by throwing into the old crossing stone and dirt, so that the road bed entirely covered the trestle work.

But, again, this instruction, number 17, was wrong in principle, regardless of the fact just stated. The statute of limitations did not begin to run against this plaintiff, on account of the existence of this nuisance, until damage done. Bird v. Railroad, 30 Mo. App. 365-373; Dickenson v. Railroad, 71 Mo. 575-579; James v. City of Kansas, 83 Mo. 570.

This obstruction, the evidence shows, was the growth of years, and was finished, and the entire channel, as it once flowed, completely blocked by .the active intervention of defendant in 1883. But plaintiff had no right of action until injury to him was committed by the overflow in 1885, and it was then, and not till then, his action accrued. Brink v. Railroad, 17 Mo. App. 198. Hence, the court properly refused instruction number 17.

III. If defendant erected this obstruction in the creek, or if it was constructed by its grantor and subsequently maintained by defendant with knowledge, then it would be liable for injuries resulting therefrom. Pinney v. Berry, 61 Mo. 359; Dickenson v. Railroad, supra; Wayland v. Railroad, 75 Mo. 555-556.

Neither can defendant escape liability for erecting and maintaining this obstruction in the creek’s channel by showing that others have likewise obstructed the same at points lower down. This plaintiff can only complain of the immediate cause of the injuries to his property. His land so overflowed lies above the railroad obstruction, and it is because of defendant’s acts in maintaining said nuisance,' that he is injured.

The case at bar is one quite different from Wayland v. Railroad, supra, cited and relied upon by defendant. The defendant in that case, thé purchaser of a railroad, was held not liable, for failing to abate a1 nuisance created by the vendor before sale, - where the nuisance had been erected by such vendor on the lands of another, while in the matter now under consideration the nuisance,- or obstruction complained of, is within the bounds of the right of way, and is not on the land of another — hence, we think the trial court properly refused to declare the law as contained in defendant’s instruction number 18.

IV". The last matter complained of by defendant’s counsel is the modification of defendant’s instruction number 11. In relation to the - charge of negligent construction of the bridge across the stream, defendant’s instruction as offered, imposed “such care and skill as is ordinarily possessed and used by persons in the construction of works of light character under similar circumstances.” The court modified‘the instruction by striking out the word, ‘' is, ’ ’ and inserting “ should,” so that the instruction read “ such care and skill as should ordinarily be used by persons in the construction of works of like character under similar circumstances.” '

In the rejection of said instruction number 11, in the shape offered, the court did not err. The “ordinary care,” the absence of which constitutes negligence in such cases, is not such care as is ordinarily possessed and used by persons in like employment, but it is that degree of care used by reasonably prudent and careful persons engaged in such work. “ Ordinary care is such as is usually exercised under the like circumstances by men of average prudence.” Sherman & Red. on Neg., secs. 20 and 30; 2 Thompson on Neg. 1149, et seq.,

It may be that men engaged in railroad bridge-building; taken en masse, are usually very negligent and careless in the manner' of doing such work. It is not the average prudence of all men thus engaged that the law fixes as a standard of ordinary care, but the test is what care and prudence would be exercised by an ordinarily prudent and careful man engaged in such work. While the court properly rejected defendant’s definition of ordinary care, the modification of the instruction, as inserted by the court, amounted to what may be termed “a meaningless”, error. It may be proper to say to the jury that the defendant’s grantor, or vendor, should have used ordinary care in constructing the bridge in question,- but it is the merest tautology to say that the ordinary care required is such care as “should be exercised,” etc. We regard this apparent effort of the court to define ordinary care as a mere omissi&n — indeed, as no definition; and, since the defendant’s instruction, number 11, as asked, was an erroneous definition, and, further, because defendant incorporated the same “meaningless error” in other instructions asked of the court, we shall not reverse and remand this cause for such omission by the court.

In instructions, numbers 16 and 19, requested by defendant, the same words are inserted by the defendant in the original draft, to-wit, “such care and- skill as should ordinarily be used,” etc. The error, then (if error it was), was one into which the court was invited, by the, defendant’s counsel, and it is well understood that the defendant cannot comjffain of error by it invited. Duffy v. Railroad, 19 Mo. App. 380; Davis v. Brown, 67 Mo. 313; Thorpe v. Railroad, 89 Mo. 650.

We discover no such substantial error in this record, and, therefore, affirm the judgment of the trial court.

All concur.