DeLapp v. Kansas City, Pittsburg & Gulf Railroad

Bland, P. J. This is an overflow case. The petition attempts to impute negligence to the appellant for its alleged failure to comply with section 2614, Revised Statutes 1889, in that it did not construct and keep open ditches upon either side of its roadbed, when the same was constructed through the lands of the respondent, by reason of which failure his lands were overflowed and his growing ’crops thereon destroyed. Railroad: damage from overflow of surface water: negligence: pleading. To make out a prima facie case of negligence against the appellant, under this section, for failure to construct ditches or drains, it was necessary to aver in the petition, and to prove upon the trial, first, that the construction of the roa(jke(i obstructed the natural flow of the surface water; second, that there were ditches or drains or natural water courses into which such obstructed surface water could have been conveyed by lateral ditches constructed along the sides of the roadbed; third, that the appellant failed to construct such ditches, by reason of which respondent’s lands were overflowed by obstructed surface water, and damages ensued. Field v. R. R., 21 Mo. App. 600; Byrne v. R. R., 47 Mo. App. 383. The second requirement was not averred in the petition, or proven by the evidence. The plaintiff failed to either state in his petition, or prove upon the trial, a cause of action under the statute, nor is his petition sufficient to support the verdict for negligence at common law. As the evidence indicates that he may have a cause of action under the statute the cause is reversed and remanded, that respondent, if he is so advised, may amend his petition. All concur.