Opinion
Opinion filed January 4, 1944.
1. — Railroads. In an action against a railroad company, founded on Sec. 5222, R.S. Mo., 1939, to recover damages for the flooding of plaintiff's farm and the destruction of his crops, alleged to have been caused by the negligence of defendant in the construction and maintenance of a culvert under its roadbed, where the evidence showed that the rainfall that flooded plaintiff's farm was not unprecedented in recent years, whether or not defendant ought to have anticipated that such a rainfall would occur was an issue for the jury.
2. — Railroads — Evidence — Expert Testimony. In an action against a railroad company to recover damages for the flooding of plaintiff's farm and the destruction of his crops, alleged to have been caused by negligence of defendant in the construction and maintenance of a culvert under its roadbed, it was error to permit an expert witness for plaintiff to testify that, from his study of rainfalls as shown by the records of the Weather Bureau, the rainfall that flooded plaintiff's farm was one that might reasonably have been anticipated.
3. — Railroads — Trial — Instructions. In an action against a railroad company to recover damages for the flooding of plaintiff's farm and the destruction of his crops, alleged to have been caused by negligence of defendant in the construction and maintenance of a culvert under its roadbed, where the evidence showed the insufficiency of only one of three culverts referred to in the evidence, an instruction, purporting to cover the entire case and directing a verdict for plaintiff, was erroneous in submitting that the defendant negligently constructed its roadbed by installing small or insufficient openings and negligently constructed and maintained such openings.
4. — Railroads — Trial — Istructions. In an action against a railroad company to recover damages for the flooding of plaintiff's farm and the destruction of his crops, alleged to have been caused by negligence of defendant in the construction and maintenance of a culvert under its roadbed, an instruction for plaintiff submitting that defendant built its embankment across a creek, its branches and prongs, and that a large volume of water flowed through the creek, its branches and prongs, down to and against the embankment, was erroneous, where there was no evidence that the embankment was built across any branches or prongs of the creek or that the creek had any branches or prongs.
5. — Railroads — Trial — Instructions. In an action against a railroad company to recover damages for the flooding of plaintiff's farm and the destruction of his crops, alleged to have been caused by negligence of defendant in the construction and maintenance of a culvert under its roadbed, an instruction that permitted the jury to find that openings in the railroad embankment were insufficient without giving them any rule by which to determine their insufficiency, was erroneous in that it gave the jury a roving commission and invited them to set up any standard which might suit their fancy by which to judge the sufficiency or insufficiency of such openings.
Appeal from the Circuit Court of the City of St. Louis. — Hon. James F. Nangle, Judge.
REVERSED AND REMANDED.
J.A. Lydick and Douglas W. Robert for appellant.
(1) (a) An extraordinary, unforeseen, unusual or violent rainstorm is an act of God, and defendant is not liable for damages resulting therefrom. Ford v. Wab. R.R., 318 Mo. 723, 300 S.W. 769. (b) The storm need not be unprecedented no matter how often one occurs. Ford v. Wab. R.R., 318 Mo. 723, 300 S.W. 769; People v. Utica Cement Co., 22 Ill. App. 159; L. N. v. Finlay (Ala.), 185 So. 904; 4 Rul. Cas. Law, p. 713; 9 Am. Juris., p. 852. (2) (a) This action is not brought under the Ditches and Drains Statute of Missouri. The statute contains no requirement for a railroad to maintain openings under its right of way, or when waters are obstructed by the right of way. Sec. 5222, R.S. Mo. 1939. (b) The statute is not applicable to cases where the flow or flood of water is the result of an unusual, extraordinary, unforeseen and violent rainstorm, an act of God. Ellet v. St. L., K.C. N. Ry., 76 Mo. 518; Harris v. Frisco Ry., 224 Mo. App. 455, 27 S.W.2d 1072; Cooney v. Pryor, 203 S.W. 630. (c) Nor are railroads required to anticipate unusual, extraordinary or violent rainstorms or to provide openings or drains to care for them and failure to do so is not negligence. Ellet v. St. L., K.C. N. Ry., 76 Mo. 518; Evans v. Wab. Ry., 222 Mo. 435, 121 S.W. 36; Sherwood v. St. L.S.W. Ry. (Mo. App.), 187 S.W. 260. (3) At common law a railroad has the right to ward off surface water, a common enemy, and to prevent its flow across its right of way and has the right to build solid embankments without openings and in so doing, if it injures a servient owner, it is damnum absque injuria. Schneider v. Mo. Pac. Ry., 29 Mo. App. 68; Collier v. C. A. Ry., 48 Mo. App. 398; Thompson v. C.M. St. P. Ry., 137 Mo. App. 62; Sandy v. City of St. Joseph, 142 Mo. App. 330; Johnson v. Leazenby, 202 Mo. App. 232; McCormick v. K.C., St. J. C.B. Ry., 57 Mo. 433; Hosher v. K.C., St. J. C.B. Ry., 60 Mo. 329; Abbott v. K.C., St. J. C.B. Ry., 83 Mo. 271; Cox v. H. St. J. Ry., 174 Mo. 588; Goll v. C. A. Ry., 271 Mo. 655. (4) (a) The admission of the depositions of W.J. Colbert and J.L. Mason was error. Both witnesses were in court; neither was a party to the suit. Sec. 1944, R.S. Mo. 1939; Heinbach v. Heinbach, 262 Mo. 69, 170 S.W. 1143; Francis v. Willits, 30 S.W.2d 203; Dubowsky v. Binggeli, 184 Mo. App. 361, 171 S.W. 12. (b) Of the two exceptions to the rule that depositions are not admissible when the witness is in court, (1) to impeach the testimony of a witness, and (2) as admission against interest, the first could not apply as the witnesses had not testified. Winegar v. C.B. Q.R.R., 163 S.W.2d 357. (c) The second could not apply as neither witness was a party to the suit. Schmitz v. St. L., I.M. S.R.R., 119 Mo. 256; Donet v. Prudential Ins. Co., 23 S.W.2d 1104; Meyer v. Dubinsky, 133 S.W.2d 1106. (d) The depositions were inadmissible as admissions against interest for the reason that the "admissions," if such they may be called, were not made during the continuance of the witness' agency for the defendant in regard to a transaction then pending. St. Charles Bank v. Denker, 275 Mo. 607; Winegar v. C.B. Q.R.R., 163 S.W.2d 357; Murray v. Motor Stages, 133 S.W.2d 1074. (e) For a declaration of an agent to be binding upon the principal, it must have been a part of the res qestae, made during the continuance of the agency in regard to, and contemporaneous with the transaction then pending. Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W.2d 947; Redmond v. Met. St. Ry. Co., 185 Mo. 1, 84 S.W. 26; Rice v. St. Louis, 165 Mo. 636, 65 S.W. 1002; Brandtjen v. Hunter, 145 S.W.2d 1009; Gaines v. Berkshire I. Co. 228 Mo. App. 319, 68 S.W.2d 905; Stipel v. Piggott, 219 Mo. App. 222, 269 S.W. 942; Williams v. Gideon Lum. Co., 224 S.W. 51; Robinson v. Bush, 199 Mo. App. 184, 200 S.W. 757. (5) Instruction No. 1 is based upon a different cause of action than that pleaded in the amended petition, hence error. Rishel v. K.C. Pub. S. Co. (Mo.), 129 S.W.2d 851; Morroy v. Wab. Ry., 219 Mo. App. 62, 265 S.W. 851; Gandy v. Frisco Ry. Co., 329 Mo. 459, 44 S.W.2d 634. (6) (a) Instruction No. 1 purports to cover the whole case and directs a verdict, but omits the defense of the act of God, the extraordinary, usual and violent rainstorm. This was error. Brownlow v. Wollard, 66 Mo. App. 636; Sherwood v. St. L.S.W. Ry., 187 S.W. 260; Cooney v. Pryor, 203 S.W. 630; Paulson v. Wab. Ry., 207 S.W. 81; Riffe v. Wab. Ry., 207 S.W. 78; Bailey v. Wab. Ry., 207 S.W. 82; Clayton Lumber Co. v. Seever, 223 S.W. 442; Bouligny v. Met. Life I. Co., 133 S.W.2d 1094. (b) The evidence of both plaintiff and defendant showed that the storm was an act of God. It is not necessary to plead an act of God as it can be shown under a general denial. Ellet v. St. L., K.C. N. Ry., 76 Mo. 518; Davis v. Wab. Ry., 89 Mo. 340; Clarkson v. Standard Brass Co., 170 S.W.2d 407. (7) The use of the words "heavy rainfall" in Instruction No. 1 was error. It was a comment upon the evidence as minimizing the storm as well as a misstatement of the character of the rainfall. It singled out this evidence and gave undue prominence to it to the exclusion of conflicting facts and evidence. Lithegner v. City of St. Louis, 125 S.W.2d 925. (8) There was neither pleading nor evidence that the ties were washed into "prongs and branches" of the watercourse, or that the defendant built an embankment across any "prongs and branches," or that any water flowed through any "prongs and branches," or that the watercourse had any "prongs and branches." Without pleading or evidence concerning "prongs and branches" Instruction No. 1 is erroneous. Gandy v. Frisco Ry., 329 Mo. 459, 44 S.W.2d 634; Kitchen v. Schlueter, 323 Mo. 1179, 20 S.W.2d 676; State ex rel. Central Coal Co. v. Ellison, 270 Mo. 645, 195 S.W. 721. (9) Instruction No. 1 referred to negligence in the construction of "small or insufficient or improperly constructed openings". There were three culverts mentioned and described in the evidence. There was no evidence of any insufficiency or improper construction of two of them. The instruction was therefore not based upon the evidence. Gandy v. Frisco Ry. 329 Mo. 459, 44 S.W.2d 634. (10) Instruction No. 1 is erroneous in that it permitted the jury to find for plaintiff if it found that "the said railroad ties which washed into said watercourse did cause the damming up and blocking of a certain culvert through said watercourse empties and flows under Chambers road. It assumes that the ties were the sole cause of the blocking and ignores the evidence that there was other matter choked into this culvert, i.e. branches of trees, timbers, poles, etc. It is error to give an instruction which excludes consideration of points raised by the evidence. Sawyer v. H. St. J.R.R., 37 Mo. 240; Chappell v. Allen, 38 Mo. 213; Perkins v. K.C. So. Ry., 329 Mo. 1203, 49 S.W.2d 103. (11) Instruction No. 1 is erroneous in that it told the jury that if it believed from the evidence that "the defendant improperly and negligently constructed and maintained said openings through said embankment, which contributed in some way to the destruction and injury to plaintiff's crops" he was entitled to recover. The use of the words "contributed in some way," was error. Hof. v. Transit Co., 213 Mo. 445, 111 S.W. 1166; Krehmeyer v. Transit Co., 220 Mo. 639, 120 S.W. 78; Moon v. Transit Co., 247 Mo. 227, 152 S.W. 303. (12) (a) Instruction No. 3 is erroneous in that it singles out and gives undue prominence to a portion of the evidence on a matter not at issue in the case. Lithegner v. City of St. Louis, 125 S.W.2d 925; Griffith v. Walesby, 91 S.W.2d 232; Lewis v. K.C. Pub. S. Co., 17 S.W.2d 359; Jones v. Norman, 248 S.W. 621. (b) This is especially true when there is no charge that defendant blocked any watercourse. Rucker v. Alton Ry., 343 Mo. 929, 123 S.W.2d 24. (c) It is a comment on the evidence. In re Bearden, 86 S.W.2d 585, 593. (13) The court erred in overruling the objection to the following question asked witness Buchmueller: Q. "And from your study beginning at that time, for the five minute period, was the rain of July, 1942, one which might be reasonably anticipated?" Glasgow v. Met. St. Ry. Co., 191 Mo. 347, 89 S.W. 915; Kaw Feed Co. v. A.T. S.F. Ry., 129 Mo. App. 498; Sutter v. Kansas City, 138 Mo. App. 105, 119 S.W. 1084. (14) Permitting hypothetical questions, which assume facts not in evidence, is error. Bennett v. Myres, 21 S.W.2d 943; Streeter v. Washington Fidelity Co., 229 Mo. App. 33, 68 S.W.2d 889. (15) As railroads are not required to prepare culverts for extraordinary rainstorms, evidence as to the condition of Culvert No. 1 was inadmissible. Ellet v. St. L., K.C. N. Ry., 76 Mo. 518; Harris v. Frisco Ry., 224 Mo. App. 455, 27 S.W.2d 1072; Cooney v. Pryor, 203 S.W. 630.
Anthony Canzoneri and Echeal T. Feinstein for respondent.
(1) Under Missouri Code pleading forms of actions have been abolished. (a) One who obstructs the flow of water in a natural watercourse, resulting in injury, is liable. Beauchamp v. Taylor, 132 Mo. App. 92, 95, 111 S.W. 609; Lucas v. City of Louisiana, 173 S.W.2d 629; Munkres v. Kansas City et al., 72 Mo. 514. (b) Statute does not have to be pleaded. R.S. Mo. 1939, sec. 5222; Jones v. C.B. Q.R.R., 125 S.W.2d 5, 7. (c) One warding off surface water must do so without negligence. Goll v. C. A.R.R., 271 Mo. 655, 666; Collier v. C. A.R.R., 48 Mo. 398, 401; Hosher v. Kansas City et al., 60 Mo. 329. (2) (a) Act of God defense is predicated upon inability of defendant to anticipate natural forces. 1 C.J. 1175; Ford v. Wabash R.R. et al., 300 S.W. 769, 773. (b) When defendant's negligence commingles with an act of God, defendant remains liable. Gratiot St. Warehouse Co. v. M.-K.-T.R.R., 102 S.W. 11, 16; Harris v. St. Louis-San Francisco R.R., 224 Mo. App. 455, 27 S.W.2d 1072; Dougan v. Thompson, 150 S.W.2d 518. (3) Instructions have been previously approved. King v. Lusk, 196 S.W. 67, 68. (4) Depositions of agents may be introduced in evidence for the purpose of showing knowledge. Henry v. First National Bank, 115 S.W.2d 121; State ex rel. S.S. Kresge Co. v. Shain, 340 Mo. 145, 101 S.W.2d 14; 22 C.J., Art. 302, p. 284; Fisher v. The Pullman Co., 212 Mo. App. 280, 254 S.W. 114; Wainwright v. Westborough Country Club, 45 S.W.2d 86.
This is an action to recover damages for the negligence of the defendant in the construction and maintenance of a culvert under its roadbed at or near Bissell Station in St. Louis County, whereby, it is charged, plaintiff's farm was flooded and his crops growing thereon were destroyed.
The action is founded on section 5222, Mo. R.S.A., which provides as follows:
"It shall be the duty of every corporation, company or person owning or operating any railroad or branch thereof in this state, and of any corporation, company or person constructing any railroad in this state, within three months after the completion of the same through any county in this state, to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad, and 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, including surface water, along such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad."
The trial, with a jury, resulted in a verdict in favor of plaintiff for $2000. Judgment was given accordingly, and defendant appeals.
Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence.
Defendant's roadbed is on an embankment, and the right of way constitutes the western boundary of plaintiff's farm. Chambers Road, which is a public highway built on an embankment, is the southern boundary of plaintiff's farm and crosses defendant's right of way over a viaduct.
Plaintiff's farm, consisting of nineteen acres, is devoted chiefly to the growing of garden truck. It is a part of a natural drainage area containing about 240 acres. The drainage of this area empties into a natural watercourse or creek which has its source some distance northwest of plaintiff's farm and west of defendant's right of way. This creek flows in a southeastwardly direction through a culvert across defendant's right of way, thence diagonally across the farm north of plaintiff's farm, and thence southwardly across the middle of plaintiff's farm to and through a culvert under Chambers Road. There are two culverts across defendant's right of way, constructed and maintained by defendant, south of the culvert through which the creek runs and north of Chambers Road. They are designated in the record as culverts Nos. 2 and 3. The culvert through which the creek runs is designated as culvert No. 1. It is four feet in diameter and fifty feet long. The culvert under Chambers Road is designated as culvert No. 4. It is five feet high and twelve feet wide. The water discharged through culverts Nos. 2 and 3 is carried through ditches eastwardly into the creek.
The railroad embankment cuts diagonally across the watershed, obstructing the natural flow of the water from west to east. There is a drainage ditch constructed along the west side of the embankment, from which the water flows through culverts Nos. 1, 2 and 3. It appears that the culverts were originally so constructed and placed as to take care of the water that would normally flow through them. And the evidence shows that they did properly carry off all the water for many years prior to the rainfall which flooded plaintiff's farm. The farm had never been flooded before by other rainfalls.
The evidence tends to show that there was a heavy rainfall on July 9, 1942, which was prevented from draining in a normal and natural manner because culvert No. 1, although originally of sufficient size to carry off all the water, was insufficient to do so at the time of this rainfall because the bottom of the culvert was two feet below the level of the creek bed, so that the insufficiency of the culvert to carry off the water as it fell caused a damming up of the water on the west side of the embankment to such an extent that the water rose up and flowed over the roadbed, and in this process railroad ties belonging to defendant, lying along beside the railroad tracks, were washed into the creek and were carried into culvert No. 4 under Chambers Road, causing it to dam up and impound the water on plaintiff's farm, thereby completely destroying his crops. The ties weighed about two hundred pounds each. It seemed that some of the ties floating down the creek knocked boards from two bridges, and these boards taken down stream by the current lodged at or near the culvert under Chambers Road and aided in damming it up. All previous rainfalls had been properly taken care of by the culvert under the railroad because the culvert had been kept open so that the full size of the culvert was available for the flow of the water, whereas at the time plaintiff's farm was flooded defendant had permitted the bed of the creek to build up at the ends of the culvert so that the bottom of the culvert was two feet lower than the bed of the creek as so built up, whereby the culvert was so choked that it could not properly carry off the water as it did before.
Defendant puts its assignment of error on the ground that the flooding of plaintiff's farm was the result of an act of God, that is, an unusual, extraordinary, and unexpected rainfall.
The evidence shows that the rainfall occurred between the hours of twelve midnight and six A.M.
The records of the Weather Bureau for this area show that the rainfall on that date was .53 from 12 to 1, 2.00 from 1 to 2, 1.02 from 2 to 3, .87 from 3 to 4, 1.24 from 4 to 5, and .16 from 5 to 6. During that period the average rainfall per hour was .97. The peak of intensity for a period of five minutes was at the rate of 7.2 per hour, for a period of ten minutes at the rate of 6.00 per hour; for a period of fifteen minutes at the rate of 5.2 per hour; for a period of thirty minutes at the rate of 2.95 per hour; for a period of sixty minutes at the rate of 2.07 per hour.
In 1897 there was a rainfall of an intensity of 10.56 per hour for a period of five minutes; in 1898, 8.88 per hour; again in 1898, 7.2 per hour; in 1900, 7.2 per hour; again in 1900, 7.44 per hour; in 1923, 7.05 per hour; in 1933, 6.6 per hour. In the ten-minute periods we had in 1923 an intensity of 6.24 per hour, and in 1933, 5.73 per hour. In the fifteen-minute periods we had in 1923 an intensity of 5.56 per hour; in 1933, 5.2 per hour; and in 1913, 5.00 per hour. In the thirty-minute periods in 1923 the intensity was 5.1; in 1933, 4.45; in 1942, 2.95; in 1912, 3.7; in 1913, 3.5; in 1914, 3.06. In the sixty-minute periods on July 9, 1942, the intensity was 2.05; in 1913, 1.97; in 1923, 3.35; in 1933, 3.48.
Besides, it appears from the opinion in Ford v. Wabash Railroad Co., 318 Mo. 723, 300 S.W. 769, relied on by defendant, that on August 24, 1918, there was a rainfall of 3.6 inches in one hour.
Joe Ribello testified for plaintiff that he had lived with his father on this place for twenty-seven years; that the Burlington track was there when they moved in; that he had seen heavier rains there than the one of July 9, 1942; that "we had a lot of rains like that before since we lived on that place;" that "in twenty-seven years we had about fifteen or twenty rains like that."
Numerous definitions of the expression "act of God" are found in the books. The expression is not susceptible of a precise and comprehensive definition. Its meaning is best arrived at by practical illustration. The text of 4 R.C.L. 713, after reciting numerous definitions of the expression, says:
"The instances (of what occurrences have been held by the courts to come within the legal comprehension of the expression) most often mentioned in the books are, as has been seen, lightning, tornadoes, storms or tempests, earthquakes, and sudden squalls of wind. In the same category would come any unprecedented flood or sudden inundation which no human power could stay and no foresight or prudence anticipate. However, to constitute an act of Providence it seems that a storm, flood or freshet need not be unprecedented, if it is unusual, extraordinary and unexpected. Thus, it has been held that a carrier is not liable for damage caused by a flood such as occurs but twice in a generation, nor is the fact that such a flood has occurred once in each of two preceding years sufficient to make it liable."
Our Supreme Court in Ford v. Wabash Railroad Co., supra, quoted this text, but did not say that it correctly announced the law.
In Ellet v. St. Louis, Kansas City Northern Railway Co., 76 Mo. 518, relied on by defendant, a physician who had resided in the locality of the rainstorm for nine years, testified that the rain was the hardest he had even seen; that he was on horseback on a level prairie and that his horse was knee-deep in water in a space of ten minutes; and that spouts of water fell as thick as his arm. In that case the court said that the statute requiring railway companies to construct ditches and drains along the sides of their roadbeds could not be interpreted to mean that a railroad company should anticipate and make provision for floods "which are extraordinary and unprecedented in the locality where such ditches and drains are required to be constructed."
An instruction given for the defendant in that case and approved by the court as correctly stating the law, directed a verdict for defendant if the ditch or waterway was sufficient in size to carry off the water that fell where the accident occurred "during the greatest storm which had previously been known to have occurred in that locality."
In Flori v. City of St. Louis, 69 Mo. 341, the court, in holding an instruction erroneous, said:
"There was no obligation on the city in the construction and maintenance of the market house to anticipate unprecedented wind storms, as required by the instruction. It would be strange doctrine to require defendant to anticipate such a storm as had never before occurred, and provide against it in the erection and maintenance of a market house."
In that case there was evidence showing that the building was blown down by a storm of unusual force, amounting to a cyclone.
In Evans v. Wabash Railroad Co., 222 Mo. 435, 121 S.W. 36, relied on by defendant, it was not claimed that the accident was due to an "act of God" in the strict interpretation of that phrase, but rather that it was due to the doctrine involved in the phrase "vis major", which is defined to be an irresistible natural cause which cannot be guarded against by the ordinary exertions of human skill and prudence. Concerning the character of the snowstorm involved in that case the court said:
"The facts developed concerning the storm that was raging at or about the time of this accident are practically undisputed, and the evidence clearly shows that the snow and wind storm which was raging at the time of the collision was of a most extraordinary and unprecedented character in that locality. There are no contradictions upon this subject among the witnesses. Every witness who testified gave it that character. It was such a storm that could not reasonably have been anticipated by the agents, servants and employees of the appellant."
In Cooney v. Pryor (Mo. App.), 203 S.W. 630, the court said that the law is that a railroad company's duty "does not require it to ditch against an extraordinary and unprecedented downfall of water."
In Sherwood v. St. Louis-San Francisco Railway Co. (Mo. App.), 187 S.W. 260, it was held that plaintiff was not entitled to recover if "the flood in question was of such extraordinary and unprecedented magnitude that defendant in building and maintaining its roadbed was guilty of negligence in not anticipating" that the opening in its embankment would be too small to let through the water accumulating there.
In Harris v. St. Louis-San Francisco Railway Co., 224 Mo. App. 455, 27 S.W.2d 1072, it was held that "defendant is not required to anticipate and provide against the effects of an extraordinary and unprecedented flood."
There can be no question under the evidence in the present case that the rainfall which flooded plaintiff's farm was not unprecedented in recent years. Whether or not defendant ought to have anticipated or expected that such a rainfall would occur was clearly an issue for the jury.
The instruction in the nature of a demurrer to the evidence was properly refused.
Witness Buchmueller, an expert who specialized in hydraulics and the study of rainfall, was permitted to testify, over the objection of defendant, to the effect that, from his study of rainfalls as shown by the records of the Weather Bureau, the rainfall of July 9, 1942, was one which might have been reasonably anticipated. This was manifest error. It was clearly an invasion of the province of the jury. The conclusion of an expert from a study of weather records as to rainfalls to be anticipated is not the criterion to be adopted by the jury. The criterion is what the average man ought to anticipate. The admission of this conclusion of the witness could hardly have failed to influence the minds of the jurors to the prejudice of the defendant.
The court also committed error in the giving of plaintiff's instruction No. 1. The instruction covered the whole case and directed a verdict. It was erroneous in submitting that defendant negligently constructed its roadbed by installing small or insufficient openings, and that defendant negligently constructed and maintained said openings. The instruction in this respect has no support in the evidence. There is no evidence of any negligence in the construction or maintenance of culverts Nos. 2 and 3, under the railroad embankment. Only the insufficiency of culvert No. 1 was shown. So far as the evidence shows the insufficiency of this culvert was solely responsible for the flooding of plaintiff's farm. The instruction in submitting the insufficiency of all three must have been confusing and misleading to the jury. It did not submit the case made by the evidence.
The instruction was further erroneous in submitting that defendant built its embankment across the creek, its branches and prongs, and that a large volume of water flowed through the creek, its branches and prongs, down to and against the embankment. There was no evidence that the embankment was built across any branches or prongs of the creek, or that the creek had any branches or prongs.
Furthermore, an instruction very similar to this one was held erroneous in King v. Lusk (Mo. App.), 196 S.W. 67, for permitting the jury to find the openings in the embankment to be insufficient without giving them any rule by which to determine their insufficiency, giving the jury a roving commission and inviting them to set up any standard whch might suit their fancy by which to judge the sufficiency or not of the openings. The present instruction is subject to the same objection.
Other questions raised will doubtless not recur on another trial.
For the errors mentioned the judgment should be reversed and the cause remanded.
The foregoing opinion of SUTTON, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly reversed and the cause remanded. Hughes, P.J., and McCullen and Anderson, JJ., concur.