Ellison, J.
— There was a demurrer to the evidence, both at the close of the testimony for plaintiff and at the close of the case. It appears that the creek was about fifty feet wide and eight or ten miles long, extending from up in the bluffs and wooded hills westerly, down through the bottom into a lake. The railroad track, at this point may be said to run north and south, and the stream northeast and southwest.
There was a public road crossing the stream by means of a county bridge something more than one-half mile up the creek east of the railroad bridge.
After the construction of the railroad, contiguous land-owners built a levee on either side of the creek, about fifty feet from either side, which, including the width of the stream, enclosed a space of about one hundred and fifty feet in width. These were narrowed at the railroad bridge to near eighty feet. The levee on the northwest side of the stream, ended at the public road where it crosses the county bridge; but on the other side, the levee was turned at about a right angle to the creek and was run across to the bluff nearly a quarter of a mile distant. There was testimony which tended to show that when defendant took down the first bridge and built the present one, the piles ,upon which the first one stood, were cut off so as to stick up from two to five feet above the natural bed of the stream, some of them reaching up within four or five feet of the lower chord of the bridge.
On the morning of June 3, shortly before daylight, there was a terrific rainstorm in this vicinity. In my opinion the testimony established, conclusively, that it was an unprecedented storm. Witnesses stated that there had been other storms in which there was as much [489]*489rainfall, but they were of a day or more in length, while this one had come and gone in one or two hours. Counsel designated it as a “cloud burst” or “water spout,” the water falling upon the hill country along the creek, pouring rapidly down the hillsides and carrying into the creek, fences, brush, saw logs, whole trees forty to sixty feet long with all their roots and branches, together with every sort of lighter drift, such as cornstalks, etc.
The valley of the creek in the hills, a mile or two above the bridge, was covered with the flood in some places a quarter of a mile wide. Emerging from the hills into the level Missouri bottom, it spread out and poured along the foot-hill slope over a very large territory on both sides of the creek, including plaintiff’s field mentioned in her petition. Half a mile east of the railroad bridge and up the stream near the hills, was the highway bridge. Still further up the stream east of the highway bridge, a body of water, one quarter of a mile wide, escaped from the creek, ran south and west across the highway and over the top of a levee three feet high, into plaintiff’s field, carrying with it, and depositing upon her field, great quantities of heavy driftwood, including saw logs twenty inches to two feet in diameter. Below the highway bridge and thence to the railroad bridge, a distance of more than half a mile, the creek rose above and overflowed the levee on the south side of the creek, nearly five feet higher than the natural banks, and thence flowed southward over plaintiff’s field.
One of her witnesses, an eye witness' of this scene, says water was running over the levee nearly all the space between the two bridges.
Persons on horseback endeavoring to pass along the highway southward from the county bridge could not do so. The water in the road was deep enough to swim a horse. Water was up to the floor of the county [490]*490bridge and drift would come down the stream on and against the top of the bridge.
A large tree floated down with its roots and branches and lodged against the county bridge, and soon stopped a pile of drift entending seventy-five to one hundred yards up the creek. On this twenty-five or thirty men with saws and axes walked and worked. They had to tear up the bridge floor in order to get the drift loose. One man got four hundred rails out of this drift pile.
Within the recollection of no witness, many of whom testified that they had lived in the vicinity for many years, had such a quantity of water fallen in the same length of time as fell at this time.
It was testified by several witnesses that the creek channel was not capable of containing one-third of the waters of this flood seeking outlet at that time.
There was testimony however, on the part of the plaintiff, which tended to show that but for the piling which had been left protruding above the bed of the stream under the railroad bridge, the drift would have passed the bridge and that’ such piling would have obstructed the drift of an ordinary storm. Quite a portion of the population turned out that morning and a number, including some of defendant’s employes, were at the railroad bridge endeavoring to prevent the drift from damming the creek at that point. Prom these, testimony was elicited which would warrant the jury in finding that the piling was at least one of the efficient causes of the choking and damming of the stream at that point and that such damming caused the water to break over thelevee between the two bridges.
The demurrer includes within its scope the question whether, notwithstanding the overflow caused by the railroad bridge, plaintiff ’ s crops would not have been destroyed by the overflow caused solely by the drift at points above the railroad bridge; and whether the severity and suddenness of the storm and the body of [491]*491the water, would not have overcome the capacity of the stream and destroyed the crops, even though the obstruction at the railroad bridge had not occurred. We have concluded, though with much hesitation, that there was enough evidence to make this a question for the jury. We will therefore not interfere with the ruling of the trial court in refusing the demurrer. Though this phase of the case should be placed appropriately before the jury.
Instruction number 2, in effect, directed the jury to find for plaintiff, notwithstanding the storm may have been unprecedented, if they believed that defendant’s “negligence concurred and combined with said extraordinary storm in causing plaintiff ’ s injury.’ ’ It was in this respect misleading. It is perhaps taken from the language of the court in Pruitt v. Railroad, 62 Mo. 540. This is general language used in stating an abstract rule of law. Such abstract statements are dangerous material for an instruction. The negligence, even in case of carriers, must be a co-operative cause of the loss. Davis v. Railroad, 89 Mo. 340. The rule as to carriers invokes a stricter principle of law than is applicable here.
For the much greater reason therefore, the negligence, in a case like the present, must have been such as to have effectively caused the destruction of the crops. It must have been an efficient cause though it need not have been the sole cause.
When the act of Gfod is the cause of a loss, it is not enough, under this rule of law, to show that defendant has been guilty of negligence, the case must go further and show that such negligence was an active agent in bringing about the loss, without which agency, the loss would not have occurred.
The instruction does not embody these requisites, it does not make it necessary for the jury to find that the negligence was an efficient or direct cause of the overflow, proximately bringing it about
Free access — add to your briefcase to read the full text and ask questions with AI
Ellison, J.
— There was a demurrer to the evidence, both at the close of the testimony for plaintiff and at the close of the case. It appears that the creek was about fifty feet wide and eight or ten miles long, extending from up in the bluffs and wooded hills westerly, down through the bottom into a lake. The railroad track, at this point may be said to run north and south, and the stream northeast and southwest.
There was a public road crossing the stream by means of a county bridge something more than one-half mile up the creek east of the railroad bridge.
After the construction of the railroad, contiguous land-owners built a levee on either side of the creek, about fifty feet from either side, which, including the width of the stream, enclosed a space of about one hundred and fifty feet in width. These were narrowed at the railroad bridge to near eighty feet. The levee on the northwest side of the stream, ended at the public road where it crosses the county bridge; but on the other side, the levee was turned at about a right angle to the creek and was run across to the bluff nearly a quarter of a mile distant. There was testimony which tended to show that when defendant took down the first bridge and built the present one, the piles ,upon which the first one stood, were cut off so as to stick up from two to five feet above the natural bed of the stream, some of them reaching up within four or five feet of the lower chord of the bridge.
On the morning of June 3, shortly before daylight, there was a terrific rainstorm in this vicinity. In my opinion the testimony established, conclusively, that it was an unprecedented storm. Witnesses stated that there had been other storms in which there was as much [489]*489rainfall, but they were of a day or more in length, while this one had come and gone in one or two hours. Counsel designated it as a “cloud burst” or “water spout,” the water falling upon the hill country along the creek, pouring rapidly down the hillsides and carrying into the creek, fences, brush, saw logs, whole trees forty to sixty feet long with all their roots and branches, together with every sort of lighter drift, such as cornstalks, etc.
The valley of the creek in the hills, a mile or two above the bridge, was covered with the flood in some places a quarter of a mile wide. Emerging from the hills into the level Missouri bottom, it spread out and poured along the foot-hill slope over a very large territory on both sides of the creek, including plaintiff’s field mentioned in her petition. Half a mile east of the railroad bridge and up the stream near the hills, was the highway bridge. Still further up the stream east of the highway bridge, a body of water, one quarter of a mile wide, escaped from the creek, ran south and west across the highway and over the top of a levee three feet high, into plaintiff’s field, carrying with it, and depositing upon her field, great quantities of heavy driftwood, including saw logs twenty inches to two feet in diameter. Below the highway bridge and thence to the railroad bridge, a distance of more than half a mile, the creek rose above and overflowed the levee on the south side of the creek, nearly five feet higher than the natural banks, and thence flowed southward over plaintiff’s field.
One of her witnesses, an eye witness' of this scene, says water was running over the levee nearly all the space between the two bridges.
Persons on horseback endeavoring to pass along the highway southward from the county bridge could not do so. The water in the road was deep enough to swim a horse. Water was up to the floor of the county [490]*490bridge and drift would come down the stream on and against the top of the bridge.
A large tree floated down with its roots and branches and lodged against the county bridge, and soon stopped a pile of drift entending seventy-five to one hundred yards up the creek. On this twenty-five or thirty men with saws and axes walked and worked. They had to tear up the bridge floor in order to get the drift loose. One man got four hundred rails out of this drift pile.
Within the recollection of no witness, many of whom testified that they had lived in the vicinity for many years, had such a quantity of water fallen in the same length of time as fell at this time.
It was testified by several witnesses that the creek channel was not capable of containing one-third of the waters of this flood seeking outlet at that time.
There was testimony however, on the part of the plaintiff, which tended to show that but for the piling which had been left protruding above the bed of the stream under the railroad bridge, the drift would have passed the bridge and that’ such piling would have obstructed the drift of an ordinary storm. Quite a portion of the population turned out that morning and a number, including some of defendant’s employes, were at the railroad bridge endeavoring to prevent the drift from damming the creek at that point. Prom these, testimony was elicited which would warrant the jury in finding that the piling was at least one of the efficient causes of the choking and damming of the stream at that point and that such damming caused the water to break over thelevee between the two bridges.
The demurrer includes within its scope the question whether, notwithstanding the overflow caused by the railroad bridge, plaintiff ’ s crops would not have been destroyed by the overflow caused solely by the drift at points above the railroad bridge; and whether the severity and suddenness of the storm and the body of [491]*491the water, would not have overcome the capacity of the stream and destroyed the crops, even though the obstruction at the railroad bridge had not occurred. We have concluded, though with much hesitation, that there was enough evidence to make this a question for the jury. We will therefore not interfere with the ruling of the trial court in refusing the demurrer. Though this phase of the case should be placed appropriately before the jury.
Instruction number 2, in effect, directed the jury to find for plaintiff, notwithstanding the storm may have been unprecedented, if they believed that defendant’s “negligence concurred and combined with said extraordinary storm in causing plaintiff ’ s injury.’ ’ It was in this respect misleading. It is perhaps taken from the language of the court in Pruitt v. Railroad, 62 Mo. 540. This is general language used in stating an abstract rule of law. Such abstract statements are dangerous material for an instruction. The negligence, even in case of carriers, must be a co-operative cause of the loss. Davis v. Railroad, 89 Mo. 340. The rule as to carriers invokes a stricter principle of law than is applicable here.
For the much greater reason therefore, the negligence, in a case like the present, must have been such as to have effectively caused the destruction of the crops. It must have been an efficient cause though it need not have been the sole cause.
When the act of Gfod is the cause of a loss, it is not enough, under this rule of law, to show that defendant has been guilty of negligence, the case must go further and show that such negligence was an active agent in bringing about the loss, without which agency, the loss would not have occurred.
The instruction does not embody these requisites, it does not make it necessary for the jury to find that the negligence was an efficient or direct cause of the overflow, proximately bringing it about
[492]*492It leaves the jury free to indulge in any fanciful connection between the negligence and the loss, however remote it might be. As was remarked in the case of Railroad v. School District, 96 Pa. St. 65, a pebble in the • stream would in some small degree impede the course of the water, yet it would scarcely be held to be an efficient cause. Our views on this subject are so aptly expressed in that case that we take from it the following:
“We apprehend that the concurring negligence, which, when combined with the act of God, produces the injury, must be such as is in itself a real producing cause of the injury, and not a merely fanciful, or speculative or microscopic negligence which may not have been in the least degree the cause of the injury. In other words, if the act of God in the particular case was of such an overwhelming and destructive character as by its own force, and independently of the particular negligence alleged or shown, to produce the injury, there would be no liability though there was some negligence in the maintenance of the particular structure. To create a liability, it must have required the combined effect of the act of God and the concurring negligence to produce the injury. The present case affords a fair illustration of the reason for this distinction. The defendant’s witnesses testified that the force and volume of the water were so very great that it would have required one hundred and twenty such culverts to pass it off.
“Hence, if the three culverts were in the most perfect condition, they would not at all have prevented the injury, and, therefore, the fact that they were somewhat obstructed might be quite immaterial.”
In Rogers v. Railroad, 67 Cal. 607, an instruction was given by the trial court which directed the jury that if, in addition to the act of God, the intervention of man takes place, co-operating with it and commingling [493]*493with, it to any extent, however slight, and an injury then results, the injury is to be ascribed, not to the act of God, but to the act of man; and that therefore if the negligence of ahúman being concurs with the act of God and causes an injury, the party thus negligent would be responsible therefor. On appeal to the supreme court such instruction was held erroneous. This much for the effect of the negligence. The character, or kind, or degree of the negligence (if it may be so written), thus commingling with the act of God, must be such as shows a want of ordinary care; Haney v. City of Kansas, 94 Mo. 334; Gillespie v. Railroad, 6 Mo. App. 554. Defendant is not liable for a loss resulting from extraordinary and unprecedented storms. Flori v. City of St. Louis, 69 Mo. 341; Ellet v. Railroad, 76 Mo. 518. Such would be denominated as the “ act of God,” from which no liability ensues, on the principle that no man shall be responsible for that which no man can control. Rogers v. Railroad, supra.
Defendant is only required to take precautions against ordinary storms. If, therefore, defendant has exercised ordinary prudence and care in replacing its bridge, considering the character and nature of the stream, the lay of the territory, which it drained, and of the ordinary storms which occur in that vicinity, it has not been guilty of that character of negligence which is held to bring about a liability by commingling with the act of God.
“Beyond this, prudent circumspection can not be expected to look, and there is, therefore, no liability for extraordinary floods, those unexpected visitations whose comings are not foreshadowed by the usual course of nature, and must be laid to the account of Providence, whose dealings, though they may afflict, wrong no one.” In this case, unlike most cases in which the act of God is invoked as a defense, the act of negligence did not occur during the storm, or after it was [494]*494over. Therefore the act is only made a negligent act by comparison with the duty which defendant owed before the storm. It was not defendant’s duty, to foresee and prepare against an unprecedented storm, in other words, it was not defendant’s duty to prepare against the “act •of Grod.” Its duty was only to prepare against ordinary storms.
If it did not do this, it was negligence. The instruction should therefore inform the jury of the nature of the concurring negligence which would render •defendant liable. For even though the dam and overflow would not have occurred at the railroad bridge if there had been no pilings left there, defendant is still not liable unless the piling would have caused a dam and overflow from an ordinary storm. And since, in •our opinion, the testimony shows this to have been an .unprecedented storm, it necessarily follows from the foregoing, that the important question on this branch of the case is, not so much whether the water and drift, which passed down the stream, was obstructed by the piling, but would the .piling have obstructed the water and drift of an ordinary storm such as occurs in that vicinity, so as to cause the overflow and destruction of the crop, and plaintiff’s fifth instruction should conform to this view.
There is another reason why the judgment ought ■not to stand. It is shown that the stream was leveed by citizens who were interested in adjoining lands, that such levees had the effect of widening the stream to about three times its original width, but that when the levee on the south or southeast side of the stream reached the county bridge, it was turned at a right angle and run across the valley to the bluff, thus, perhaps, diverting into the stream, in a body, water which would have found other outlets, or spread out «ver adjacent territory. The defendant can not be held [495]*495to have foreseen this, when it built its bridge, and cannot be held liable for an injury or loss caused by thus diverting the water in a body into a stream which had not theretofore received it. Such question should be put to the jury by an appropriate instruction. Newnon v. Albany, 79 N. Y. 470; Tilletson v. Smith, 32 N. H. 90. So, if by the construction of the levees, the waters of the creek were increased in volume and raised higher than the flood level thereof and thereby the stream became dammed and choked up by drift catching onto the bridge proper, the defendant is not liable and its eighth instruction should not have been refused, and so for the same reason its sixth refused instruction should have been given. They would seem properly to follow what was declared in the eighth instruction given by the court of its own motion. The ninth instruction given at the instance of the court should not have been given. It is so worded and constructed as to be misunderstood by the jury.
The instructions given for defendant were substantially correct, but for the reasons, foregoing, the judgment will be reversed and the cause remanded.
The -other judges concur.