Plaintiff’s action was instituted to recover damages for the destruction of his crops of corn and-wheat. He recovered judgment in the trial court.
It appears that plaintiff was occupying a farm in the Missouri River bottom and that defendant built a line of'railway just east of plaintiff’s land, and also-a “spur” connected with the main line. The road crossed two creeks which “headed” up in the bluffs to the east and ran through the bottom land emptying into the Missouri River off to the west. The road was built by constructing an embankment and where it crossed these creeks concrete culverts were put in. Plaintiff charges that these culverts were not of sufficient dimensions to let the water through which came from ordinary rains and that debris and mud was stopped by them so as to partially choke them up. Defendant seems to have realized that the culverts were, of themselves, not sufficient, for it put a large tiling (about *341four feet in diameter) under the embankment about midway between the two creeks and so drained the water that that part which did not go through the culverts would meet at this tiling and thence pass under the embankment. It was the water thus carried to the tiling and' thence through the railroad embankment which was east upon plaintiff’s land and destroyed his crops.
. The first count of plaintiff’s petition charges that in the fall'of 1906 plaintiff had fifteen acres of matured corn cut and shocked on his land1 which was destroyed by the water cast upon his land through the tiling aforesaid.
The second count is in great part a repetition of the charges in the first count concerning the building of the road and putting in the culverts at the crossing of the two creeks and the large tiling midway between, to which the waters dammed at the two culverts would flow and escape through onto plaintiff’s land. It likewise charged that the drains could have been made leading portions of the water off by way of what is called. “Stilling’s ditch.” It then charges that in the summer of 1907, “up to and for ten days or two weeks after the 15th day of July, 1907, ’ ’ water was thus cast upon and destroyed sixty acres of wheat.
The third count was for the destruction of the same crop of wheat, but was based on section 1110, Revised Statutes 1899 (Laws 1891, p. 82, amended Laws 1907, p. 169) requiring railway companies to construct ditches and drains.
The damage under 'the first count was assessed at one hundred dollars. There was one finding on the second and third counts, the damage being assessed at four hundred dollars.
There was ample evidence to sustain the case charged by the plaintiff as well as to justify the amount of damages returned by the jury. "We have, therefore. *342only to look to the complaints made of errors committed at the trial.
There was evidence tending to show that the water in the smaller of the two creeks was not obstructed by the culvert as charged by the plaintiff, but that the obstruction came from a wire fence which, defendant constructed across the creek just east of the culvert, which diverted the waters of this creek down to the tiling placed under the embankment. Defendant here, relying upon the well known rule of law that h recovery can only be had for and on account of the negligence charged, says it was error to consider the evidence showing any negligence not alleged in the petition. But defendant did not object to the evidence as to the fence. If it had objected on the ground that it was negligence not set up in the petition, the objection would, doubtless, have been sustained. The point cannot be made for the first time in this court. An answer might be made to this view, that notwithstanding no objection was made to admitting the evidence, yet plaintiff should not have asked an instruction submitting the hypothesis of water being obstructed by the culvert in the smaller creek when the real obstruction was the fence and not the culvert. But the evidence did show that the water from that creek did run down to the tiling and thence, with the water from the other creek, onto plaintiff’s land. The only point of criticism which can be made is that this water was turned in that direction by the wire fence across the creek, instead of the culvert a few feet further on. Since the evidence concerning the fence was admitted without objection and since it is manifest that no possible harm resulted, from submitting the culvert instead of the fence as one of the obstructions we cannot see any good reason in reversing the judgment on a matter which by no possibility could have affected the result.
What we have just written disposes of some principal objections to the instructions. As a whole they *343presented the ease to the jury properly. There is no reason whatever to suppose the jury was misled.
It is claimed that the motion in arrest of judgment should have been sustained for the reason that on the second1 and third counts in the petition ‘there was but one general verdict. But these counts were for one and the same cause of action. In such case a general verdict is not improper. On the first count, which was for the destruction of the corn in the fall of 1906, there was a separate verdict. The second and third counts were for destruction of the wheat in the summer of 1907, and the verdict was: “We, the jury, find for the plaintiff on the second and third! counts in plaintiff’s petition, and assess his damage at the sum of four hundred dollars.” The objection is not well taken. [Brownell v. Ry. Co., 47 Mo. 239; Terry v. Ry. Co., 89 Mo. 586; Zellars v. Missouri Water & Light Co., 92 Mo. App. 107, 114.]
As respects its application to- this case, there was no material change made in the statute (sec. 1110, R. S. 1899, Acts 1891, p. 82) by the amendment in Acts 1907, p. 169, and we do not find any merit in the complaint as to contradictory instructions.
Nor do we see that any just criticism has been made of the instructions upon the measure of damages. The cases cited by defendant are not applicable. Here, the crops destroyed, for which damages were to be allowed as stated in the instructions, were matured crops.
We have gone over the entire record and find that all the criticism on the judgment is based upon objections wholly technical. The merits of the case seem altogether on the side of the plaintiff. It is a case where that section of the statute applies which forbids us to interfere where no error has been committed materially affecting the merits of the action. Hence we affirm the judgment.
All concur.