Knorpf v. Chicago, Burlington & Quincy Railroad

BROADDTJS, P. J. The plaintiff’s cause of action is stated in two different counts. The first in substance is to the effect; that defendant erected an embankment for its railroad track over and through the lands of plaintiff without sufficient ditches along its sides to carry off the natural flow of waters falling or coming thereon, whereby the said waters were obstructed and caused to overflow his said lands and destroyed his growing, crops to his damage in the sum of sis hundred dollars. ■ The second count sets out a common law action, and the allegations are: That, defendant carelessly constructed a ditch along the side of its railroad embankment, which during an ordinary rainfall gathered and conducted the waters flowing from a certain stream and precipitated them over and upon plaintiff’s land, thereby destroying his growing crops, to his damage in the sum of sis hundred dollars. The answer of the defendant was a general denial. Before trial defendant moved to have the plaintiff elect upon which count he would rely. This motion was overruled. At the close of plaintiff’s evidence, defendant made an informal motion asking the court to require plaintiff to elect on which count he would go to the [317] jury, which was by the court sustained. At the close of the ease the court gave the following instruction. “The court instructs the jury that in determining whether or not the plaintiff should recover in this cause, you aré only to take into consideration the first count of the plaintiff’s petition.” The jury returned a verdict in favor of the defendant upon which judgment was rendered and plaintiff appealed. The evidence is not preserved in the record before us and we are asked by plaintiff to reverse and remand the case for a new trial on the ground that the court committed error in restricting plaintiff’s right to recover on the first count of his petition. It is held that: “A motion to compel plaintiff to elect on which act of negligence she would go to trial, made and overruled at a previous term, and renewed orally before the trial commences, should be again overruled.” [White v. Railroad, 202 Mo. 539.] “Where the petition charges common law negligence and a violation of the Vigilant Watch Ordinance as the cause of the personal injuries, it is not error to refuse to require the plaintiff to elect on which charge he will stand.” [Rapp v. Transit Co., 190 Mo. 144; Sluder v. Transit Co., 189 Mo. 107.] In the former case it is also said that, “when defendant refuses to stand on its motion to elect, files answer, goes to trial., and takes the chance of winning or losing on an issue of fact, it abandons its motion to elect, unless the allegations are so contradictory as to be self-destructive and therefore state no cause of action.” The trial court in that case overruled the motion to require the plaintiff to elect. This case is somewhat different, the appeal not being from the action of the court in refusing to sustain a motion to elect, but for sustaining one. The cases are not parallel in that the two counts under consideration are inconsistent and contradictory. If the damage was caused as stated in the first count by [318] the failure of defendant to construct ditches along the sides of its railroad where it passed through his land sufficient to carry off the surface water which came upon plaintiff’s land from ordinary rainfalls and thereby obstructed their natural flow, and destroying plaintiff’s growing crops, it was not caused by the negligent act of defendant in digging a ditch terminating opposite his land by means of which the overflow of waters of a certain creek were collected and precipitated upon his lands, thereby destroying his growing crops. The charges in the two counts are so inconsistent and contradictory that the proof of one would destroy the other. And there was no error in the action of the court compelling plaintiff to elect on which count he would stand. The action of the court ought to be upheld for another reason. The motion to elect was sustained after plaintiff had closed his evidence. The court may have concluded that the evidence did not sustain one or the other of the two counts, as the allegations are not the same in both, and different proof was required; that it applied to the one and not to the other; and that it was for the plaintiff and not for the court to say on which he should stand. The evidence is not before us and we cannot say as a matter of fact, that the court was wrong in its action, because the presumption is to the contrary — that the court’s action was proper. But we are bound to infer so far as this court is concerned that the evidence, if true, could and did not support, one or the other counts of the petition and that the court was justified in requiring plaintiff to make choice upon which he would stand. If he suffered an injury in making such choice, it was his own mistake for which he has no remedy. But we are persuaded that he selected to stand on his best foot— the best side of.his cause. The cause is affirmed. All concur.