Biggs, J.
— The railroad which is operated by the defendant extends through the valley of Shoal creek in Newton county. Shoal creek drains a large area of country. The valley varies in width from one half to one mile. What is known as the Ford farm is situated in this valley. It is located on an island formed by Shoal creek and a slough. It has for its southern and western boundaries the main channel of the creek, and the slough forms its eastern boundary. At this point Shoal creek runs in a northwesterly direction. The slough puts out from the creek at the southern boundary of the farm; It runs east several rods, turns to the northwest, and leads back into' the creek about one mile below. The railroad is constructed through this farm. In its construction a solid embankment was made across the southern end of the slough a few rods east of the point where it separates from Shoal creek, and about one half mile north where the roadbed crosses back to the east side of the slough another embankment was made. In 1895 the plaintiff cultivated this farm. He raised about thirty-five acres of corn, which he cut up and put in shocks. The greater portion of the corn was grown on the west side of the railroad. In December, 1895, there was an overflow of the waters of Shoal creek, and the plaintiff’s corn was washed away, and about three acres of growing wheat was also destroyed.
He avers that the slough was a water course; that the construction of the embankment across it was unlawful, and that by reason of the obstructions the plaintiff’s crops were destroyed. The answer of the [307]*307defendant is a general denial. It contains the further averments that the damage to the plaintiff’s crops was caused by surface water, and that the railroad was owned by the Philadelphia Construction Company; that the defendant was placed in possession of the road for the purpose of operating it, and for no other purpose, except to make such repairs as were incident to the operation of the road; that the defendant had nothing to do with the original construction of the roadbed, and it could not be held for damages resulting from its negligent construction. * * * At the close of the plaintiff’s testimony and also at the close of the case, the defendant asked the circuit court to direct a verdict for it. This the court refused to do. The jury found the issues for the plaintiff and assessed his damages at the sum of $65. The defendant has appealed.
All of the witnesses agree that the flood in question was caused by an unusual and almost unprecedented rainfall. The rainfall was so great that the overflow water from the creek covered the greater part of the valley. The water was deep enough on plaintiff’s land to carry off the corn on both sides of the railroad. The chief ground of nonsuit is that there is no substantial evidence that the obstruction of the water by reason of the embankments was one of the efficient causes of the injuries complained of.
The argument in support of the nonsuit assumes that the slough is in fact a water course, and that its obstruction in the manner indicated was unlawful, but that the defendant can not be held for the damages complained of, for the reason that all of the testimony tended to prove that the injuries were to be attributed solely to the act of Grod. In other words, that all the evidence tended to prove that the flood was unusual and there was no substantial, evidence that the concur[308]*308ring negligence in the construction of the roadbed, when combined with the act of God, produced the alleged injuries.
NofGo<dBNCB: act We had occasion to discuss this question in the recent case of James against this defendant, reported in 69 Mo. App. 431. In that case we followed the rule announced by the supreme court of Pennsylvania in the case of Railroad v. School District, 96 Pa. St. 65. That court said: “We apprehend that the concurring negligence, which, when combined with the act of God, pi’oduce 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 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 c^se 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.”
On a previous submission of this case I was led to the conclusion (and so expressed myself in an opinion) that the character of the flood was such that the conclusion was unavoidable, that the plaintiff’s crops would have been washed away had there been no obstructions in the slough. A second examination has caused me to question my former conclusion. [309]*309The question suggested was probably for the jury to determine. The trial judge saw and heard the witnesses, was personally familiar with the physical faqts, all of which ought to lead us to sustain his action in submitting the case to the jury. The evidence offered by plaintiff tended to prove these facts. A short distance above the southern end of the Ford farm Shoal creek makes a bend to the southwest, forming a horse shoe. Where the bend begins on the upper side there is a depression or low place extending to the northwest through the heel of the horse shoe and intersecting the slough between the two embankments. During the overflow complained of the water escaped from the creek and passed down through this swale until it reached the slough. The embankments and the railroad bed which were constructed about two or two and a half feet above the bank of the slough necessarily formed an obstruction to this water. During the freshet the embankments washed out. There is no positive evidence when this occurred or what effect it had on plaintiff’s crops. Mr. Basye, who owns some land in the bend of the creek, and situated about one half mile above the Ford farm, stated that he was watching the flood from his place, and that when the flood was at its highest he noticed that the water in the depression suddenly subsided three or four feet as if some obstruction below had gone out. He did not say that he saw the embankments wash out at that time, nor did he know when they did wash out. He was not in a position where he could see them. He, however, gave it as his opinion that the removal of the dams caused the sudden subsidance of the water. These physical facts and the testimony of Basye would probably warrant the conclusion that the damage to plaintiff’s crops on the east side of the railroad would not have been so great had there been no obstructions [310]*310in the slough. It is inconceivable, however, that the corn on the west side of the railroad could have been injured by the obstruction of the water on the east side, as the argument of increased damage must rest on the washing out of the lower embankment and the rapid subsidance of the accumulated water on account of it.
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Biggs, J.
— The railroad which is operated by the defendant extends through the valley of Shoal creek in Newton county. Shoal creek drains a large area of country. The valley varies in width from one half to one mile. What is known as the Ford farm is situated in this valley. It is located on an island formed by Shoal creek and a slough. It has for its southern and western boundaries the main channel of the creek, and the slough forms its eastern boundary. At this point Shoal creek runs in a northwesterly direction. The slough puts out from the creek at the southern boundary of the farm; It runs east several rods, turns to the northwest, and leads back into' the creek about one mile below. The railroad is constructed through this farm. In its construction a solid embankment was made across the southern end of the slough a few rods east of the point where it separates from Shoal creek, and about one half mile north where the roadbed crosses back to the east side of the slough another embankment was made. In 1895 the plaintiff cultivated this farm. He raised about thirty-five acres of corn, which he cut up and put in shocks. The greater portion of the corn was grown on the west side of the railroad. In December, 1895, there was an overflow of the waters of Shoal creek, and the plaintiff’s corn was washed away, and about three acres of growing wheat was also destroyed.
He avers that the slough was a water course; that the construction of the embankment across it was unlawful, and that by reason of the obstructions the plaintiff’s crops were destroyed. The answer of the [307]*307defendant is a general denial. It contains the further averments that the damage to the plaintiff’s crops was caused by surface water, and that the railroad was owned by the Philadelphia Construction Company; that the defendant was placed in possession of the road for the purpose of operating it, and for no other purpose, except to make such repairs as were incident to the operation of the road; that the defendant had nothing to do with the original construction of the roadbed, and it could not be held for damages resulting from its negligent construction. * * * At the close of the plaintiff’s testimony and also at the close of the case, the defendant asked the circuit court to direct a verdict for it. This the court refused to do. The jury found the issues for the plaintiff and assessed his damages at the sum of $65. The defendant has appealed.
All of the witnesses agree that the flood in question was caused by an unusual and almost unprecedented rainfall. The rainfall was so great that the overflow water from the creek covered the greater part of the valley. The water was deep enough on plaintiff’s land to carry off the corn on both sides of the railroad. The chief ground of nonsuit is that there is no substantial evidence that the obstruction of the water by reason of the embankments was one of the efficient causes of the injuries complained of.
The argument in support of the nonsuit assumes that the slough is in fact a water course, and that its obstruction in the manner indicated was unlawful, but that the defendant can not be held for the damages complained of, for the reason that all of the testimony tended to prove that the injuries were to be attributed solely to the act of Grod. In other words, that all the evidence tended to prove that the flood was unusual and there was no substantial, evidence that the concur[308]*308ring negligence in the construction of the roadbed, when combined with the act of God, produced the alleged injuries.
NofGo<dBNCB: act We had occasion to discuss this question in the recent case of James against this defendant, reported in 69 Mo. App. 431. In that case we followed the rule announced by the supreme court of Pennsylvania in the case of Railroad v. School District, 96 Pa. St. 65. That court said: “We apprehend that the concurring negligence, which, when combined with the act of God, pi’oduce 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 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 c^se 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.”
On a previous submission of this case I was led to the conclusion (and so expressed myself in an opinion) that the character of the flood was such that the conclusion was unavoidable, that the plaintiff’s crops would have been washed away had there been no obstructions in the slough. A second examination has caused me to question my former conclusion. [309]*309The question suggested was probably for the jury to determine. The trial judge saw and heard the witnesses, was personally familiar with the physical faqts, all of which ought to lead us to sustain his action in submitting the case to the jury. The evidence offered by plaintiff tended to prove these facts. A short distance above the southern end of the Ford farm Shoal creek makes a bend to the southwest, forming a horse shoe. Where the bend begins on the upper side there is a depression or low place extending to the northwest through the heel of the horse shoe and intersecting the slough between the two embankments. During the overflow complained of the water escaped from the creek and passed down through this swale until it reached the slough. The embankments and the railroad bed which were constructed about two or two and a half feet above the bank of the slough necessarily formed an obstruction to this water. During the freshet the embankments washed out. There is no positive evidence when this occurred or what effect it had on plaintiff’s crops. Mr. Basye, who owns some land in the bend of the creek, and situated about one half mile above the Ford farm, stated that he was watching the flood from his place, and that when the flood was at its highest he noticed that the water in the depression suddenly subsided three or four feet as if some obstruction below had gone out. He did not say that he saw the embankments wash out at that time, nor did he know when they did wash out. He was not in a position where he could see them. He, however, gave it as his opinion that the removal of the dams caused the sudden subsidance of the water. These physical facts and the testimony of Basye would probably warrant the conclusion that the damage to plaintiff’s crops on the east side of the railroad would not have been so great had there been no obstructions [310]*310in the slough. It is inconceivable, however, that the corn on the west side of the railroad could have been injured by the obstruction of the water on the east side, as the argument of increased damage must rest on the washing out of the lower embankment and the rapid subsidance of the accumulated water on account of it. As the railroad bed protected the corn on the west from the water on the ehst, that portion of the crop must have been destroyed by water coming upon the land from a point to the west of the railroad track, unless the water was high enough to pass over the track. The testimony offered by the defendant tends to show that a few rods west of the railroad track there is a swale or depression extending north and south through the farm, and that the corn on that portion of the land was washed away by water escaping from Shoal creek opposite to that point. There was also evidence tending to prove that during freshets and before the embankments were made, about one third of the water flowing in the creek passed ■ through the slough. This evidence would probably justify the inference that but for the embankments Shoal creek would have been relieved of a portion of the water at that point, thereby lessening the overflow and the consequent damage to plaintiff’s corn west of the railroad.
The other ground of nonsuit is that the destruction of plaintiff’s corn was caused by surface water, for which the defendant is not answerable. That portion of the water which escaped above Basye’s farm became surface water as soon as it left the bank of the creek, but it lost that character when it reached the slough. Jones v. Hannovan, 55 Mo. 462. As to the overflow west of the railroad the suggestion is likewise without force as the evidence tends to show .that the volume of overflow water at that place was [311]*311materially increased by reason of the obstruction of the mouth of the slough. Our conclusion is that the circuit -court was right in refusing to nonsuit the plaintiff.
The defendant complains of the following instruction: “The jury are instructed that defendant had a right to construct its road over and along the land mentioned in the pleading, and over and across the track in question, to wit, Shoal creek; and to that end might lawfully construct and maintain bridges across said creek, but it was its duty so to construct and maintain said bridge or crossing over said creek as to permit the water and drift that are accustomed to flow down said creek to pass along the same without unreasonable obstruction.
“In this connection you are further instructed that defendant can not lawfully build an embankment in and across a natural water course so as entirely to obstruct the flow thereof, and if you believe from the evidence that Shoal creek was a natural stream of water as in these instructions defined, and that defendant so constructed.its road across the same as entirely to obstruct the channel of said stream, and failed to. restore the same to its former state, or to.such state as not necessarily to have impaired its usefulness, and that by -reason thereof plaintiff’s crops were overflowed and injured, you will find for plaintiff, unless you further find that said injury was caused by an extraordinary flood or freshet, in which case you will find for the defendant.” This instruction erroneously assumes that the slough is.a part of Shoal creek which would make it a water course, as it was conceded that Shoal creek was a water course of considerable size. There was some evidence tending to prove that the-' slough was not a part of Shoal creek, and was not a water course. This was an issue in the case. It was [312]*312made both by the pleading and evidence. It was a material issue, for if the slough was not an idependent water course or part of Shoal creek, the defendant had a right to dam it up. Hence the instruction was both erroneous and predjudicial. The other defense is without merit. It is the duty of the lessee of a railroad to see to it that the roadbed has been properly constructed and to remedy defects if there are any. If the slough in question was a water course, then there was a palpable violation of the statute in constructing a solid embankment across it (R. S. 1889, sec. 2593), and the defendant having failed to remove the obstruction, must answer for the resulting damage? Por the error pointed out in the instruction, the judgment will be reversed and the cause remanded. It is so ordered.
Judge Bond concurs; Judge Bland dissents.