ON REHEARING. In addition to what was said by TRIMBLE, J., upon the original submission of the case we make the following observations.
The case of Adair Drainage District v. Q.O. K.C. Railroad,217 S.W. 70, which has been called to our attention by defendants since the opinion by TRIMBLE, J., is not in conflict with anything said in the original opinion. The facts in that case show the case is practically on all fours with the Goll case. The Goll case has been exhaustively discussed in the original opinion herein and the facts in that case differentiated from those in the case at bar. So it is not necessary to go into the discussion of the Adair Drainage District case, for the reason that it is quite apparent that the facts in that case and those in the case at bar are not at all similar. Neither can the facts in this case bring it within the cases of Vanlandingham v. Railroad, 206 S.W. 399; Johnson v. Leazenby, 216 S.W. 49, and Carson v. Schaff, 221 S.W. 825.
We have again carefully examined the record and we find that plaintiff's instruction No. 1 covering the entire case and directing a verdict mentions only the obstruction to the drain without including or saying anything about the obstruction to the river channel under the bridge. We believe that it would be impossible to separate the damage done by the obstruction in the river channel from that done by the embankment. However, we now find that there was evidence on both sides that the bridge was obstructed. Defendants have filed here photographs showing large piers in the bed of the *Page 697 river which necessarily must have obstructed the channel of the river to some extent. Defendants' witness Busch, their assistant engineer, testified that there were two piers in the river channel ten feet square at the bottom and four feet square at the top. The obstruction of the river being conceded, it was unnecessary to submit that matter to the jury.
We also think there is no question but there was evidence tending to show that the embankment obstructed the drain for the reason that there were overflows in previous years and at those times the waters were held back and rose so high at the point where the embankment crossed the drain that the water was higher than the embankment and broke over and on one occasion washed out several hundred feet of the embankment, whereupon the waters went away rapidly. The embankment was replaced and so strengthened and braced that it became indestructible from the ravages of such waters. This constituted evidence of obstruction of the drain by the embankment. [Grace v. M.K. T. Ry. Co., 212 S.W. 41, 42.]
There was no error in the court failing to tell the jury what constituted a "suitable" opening. It was held in King v. Lusk, et al., 196 S.W. 67, 69, that "suitable openings" means "openings of sufficient size to carry such a volume of water as could reasonably be expected to pass through them." There was no evidence in the case at bar of any extraordinary or unprecedented rainfall and that was not an issue in the case. In the case of King v. Lusk, supra, there was evidence of unprecedented rainfall and that there were openings present but they were claimed to have been inadequate. Here it was admitted that the channel of the river was obstructed and that there were no openings. So it is apparent that the question of the suitability of openings was not an issue in the case. Defendants recognized this in instruction No. 1 where they refer to "additional" openings.
We find that there was no error in the trial of the case and the judgment will therefore be affirmed. All concur. *Page 698