3 S.W. 82 (Mo. 1887), Springfield & Southern Railway Co. v. Calkins

Citation3 S.W. 82, 90 Mo. 538
Opinion JudgeRay, J.
Party NameThe Springfield & Southern Railway Company, Appellant, v. Calkins, Administratrix
AttorneyJohn O'Day for appellant. Benj. U. Massey for respondent.
Judge PanelRay, J. Sherwood and Brace, JJ., concur in the result.
Case DateJanuary 31, 1887
CourtSupreme Court of Missouri

Page 82

3 S.W. 82 (Mo. 1887)

90 Mo. 538

The Springfield & Southern Railway Company, Appellant,

v.

Calkins, Administratrix

Supreme Court of Missouri

January 31, 1887

Appeal from Dade Circuit Court. -- Hon. Charles G. Burton, Judge.

Affirmed.

John O'Day for appellant.

(1) The court erred in refusing to admit evidence of the agreement to arbitrate and the award made thereunder. Beattie v. David, 50 N. J. L. 102; Spencer v. Curtis, 57 Ind. 221; Excelsior Co. v. Potts, 36 N. J. L. 303; Newcomb v. Wood, 97 U.S. 581. (2) The court erred in refusing to render judgment in accordance with the award made by the arbitrators. Buckman v. Davis, 28 Pa. St. 211; Gibbs v. Berry, 13 Ired. [N. C.] 388; Lamar v. Nicholson, 7 Port. [Ala.] 158, and cases cited under first point. (3) The court erred in allowing defendant to introduce in evidence the opinions of witnesses produced on trial. In such cases, as in all others, the facts within the knowledge of the witness, and not his opinion, is what the law seeks. Railroad v. Burkett, 42 Ala. 83; Railroad v. Ball, 5 Ohio St. 569; Railroad v. Johnson, 59 Ind. 247; Brown v. Railroad, 12 R. I. 238; Railroad v. McLaren, 47 Ga. 546. (4) The court erred in refusing instruction number one asked by plaintiff. There are certain uses to which the right of way could be put which are not inconsistent with its occupancy as a railroad, and it was proper that the jury should consider the value thereof, be it large or small. Evans v. Hoefner, 29 Mo. 150; Blake v. Rich, 34 N.H. 282. (5) The plaintiff only took an easement. Whether the jury would have considered such a title of less value than a fee, no one can say, and it was error to refuse instruction number two asked by plaintiff. Railroad v. Burkett, 42 Ala. [N. S.] 83. (6) If the fourteen acres, not described in the petition, were in fact damaged, the judgment in this case will not bar a future recovery therefor, as the land was not described in the petition. The court, therefore, erred in admitting evidence as to the alleged injury done to this tract and in refusing instruction number three asked by plaintiff. Mix v. Railroad, 67 Ill. 322; Railroad v. Sawyer, 71 Ill. 361; Jones v. Railroad, 58 Ill. 382; Railroad v. Hopkins, 90 Ill. 316. (7) The jury was not composed of freeholders, and the verdict is void.

Benj. U. Massey for respondent.

(1) The testimony of the agreement to arbitrate and the award thereunder was properly rejected by the court, because the same was not pleaded in bar of, or in defence against said suit. Secs. 3521 and 3535, R. S.; Bliss on Code Pleading, sec. 352; Brown v. Lazarle, 44 Mo. 388; Northup v. Insurance Co., 47 Mo. 443. (2) "No award shall be confirmed unless a copy thereof, together with a notice, in writing, of such motion, shall have been served on the adverse party at least fifteen days before the filing of the award and motion in the proper court." Sec. 334, R. S. (3) It is not improper for witnesses to give their opinions as to damages, when in connection therewith they state facts upon which such opinions are based. Sherman v. Railroad, 10 Am. & Eng. Corp. Cases, 193; Railroad v. Arnold, 10 Am. & Eng. Corp. Cases, 219; Railroad v. Paul, 10 Am. & Eng. Corp. Cases, 493. Besides appellant cannot complain of a rule which he, himself, first followed. (4) The title to the entire surface of the right of way is vested in the railroad company by judgment of condemnation, and the company, and none other, is entitled...

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54 practice notes
  • 23 S.W.2d 130 (Mo. 1929), 27689, State ex rel. State Highway Com'n v. Young
    • United States
    • Missouri Supreme Court of Missouri
    • December 30, 1929
    ...touched by the appropriation. [Wyandotte, K. C. & N. Ry. Co. v. Waldo, 70 Mo. 629, 632; Springfield & S. Ry. Co. v. Calkins, 90 Mo. 538, 544; C., M. & St. P. Ry. v. Baker, 102 Mo. 553, 559, 15 S.W. 64; Union Elevator Co. v. K. C. Sub. B. Ry. Co., 135 Mo. 353, 365, 36 S.W. 1071, ......
  • 66 S.W.2d 847 (Mo. 1933), State ex rel. Union Electric Light & Power Co. v. Bruce
    • United States
    • Missouri Supreme Court of Missouri
    • December 20, 1933
    ...been denied. The same procedure was followed in Ry. Co. v. Ry. Co., 24 S.W. 478, 118 Mo. 599, and Springfield & S. Ry. Co. v. Calkins, 3 S.W. 82, 80 Mo. 538. [See, also, Ry. v. Kemper, 166 S.W. 291, l. c. 293 (3-6), 256 Mo. 279.] Attorneys for respondents argue as follows: "In the ......
  • 97 S.W. 867 (Mo. 1906), St. Louis, Memphis & Southeastern Railroad Co. v. Aubuchon
    • United States
    • Missouri Supreme Court of Missouri
    • November 21, 1906
    ...is adapted. Welsh v. Railroad, 19 Mo.App. 127; Railroad v. Baker, 102 Mo. 553; Railroad v. McGrew, 104 Mo. 282; Railroad v. Valcins, 90 Mo. 538; 10 Am. & Eng. Ency. Law (2 Ed.), 1103, 1164; Mississippi River Bridge Co. v. Ring, 58 Mo. 491; Lewis on Em. Dom., sec. 479. (b) It has been he......
  • 78 Cal. 63, 12743, San Diego Land &Amp; Town Co. v. Neale
    • United States
    • California Supreme Court of California
    • December 31, 1888
    ...Chapman, 38 Kan. 307; Leavenworth R. R. v. Paul, 28 Kan. 821; Colville v. St. Paul R. R. Co ., 19 Minn. 285; Springfield R. R. v. Calkins , 90 Mo. 543; Vandine v. Burpee, 13 Met. 291; Swan v. Middlesex , 101 Mass. 177; Frankfort & K. R. R. Co. v. Windsor , 51 Ind. 238.) Upon the princip......
  • Request a trial to view additional results
54 cases
  • 23 S.W.2d 130 (Mo. 1929), 27689, State ex rel. State Highway Com'n v. Young
    • United States
    • Missouri Supreme Court of Missouri
    • December 30, 1929
    ...touched by the appropriation. [Wyandotte, K. C. & N. Ry. Co. v. Waldo, 70 Mo. 629, 632; Springfield & S. Ry. Co. v. Calkins, 90 Mo. 538, 544; C., M. & St. P. Ry. v. Baker, 102 Mo. 553, 559, 15 S.W. 64; Union Elevator Co. v. K. C. Sub. B. Ry. Co., 135 Mo. 353, 365, 36 S.W. 1071, ......
  • 66 S.W.2d 847 (Mo. 1933), State ex rel. Union Electric Light & Power Co. v. Bruce
    • United States
    • Missouri Supreme Court of Missouri
    • December 20, 1933
    ...been denied. The same procedure was followed in Ry. Co. v. Ry. Co., 24 S.W. 478, 118 Mo. 599, and Springfield & S. Ry. Co. v. Calkins, 3 S.W. 82, 80 Mo. 538. [See, also, Ry. v. Kemper, 166 S.W. 291, l. c. 293 (3-6), 256 Mo. 279.] Attorneys for respondents argue as follows: "In the ......
  • 97 S.W. 867 (Mo. 1906), St. Louis, Memphis & Southeastern Railroad Co. v. Aubuchon
    • United States
    • Missouri Supreme Court of Missouri
    • November 21, 1906
    ...is adapted. Welsh v. Railroad, 19 Mo.App. 127; Railroad v. Baker, 102 Mo. 553; Railroad v. McGrew, 104 Mo. 282; Railroad v. Valcins, 90 Mo. 538; 10 Am. & Eng. Ency. Law (2 Ed.), 1103, 1164; Mississippi River Bridge Co. v. Ring, 58 Mo. 491; Lewis on Em. Dom., sec. 479. (b) It has been he......
  • 78 Cal. 63, 12743, San Diego Land &Amp; Town Co. v. Neale
    • United States
    • California Supreme Court of California
    • December 31, 1888
    ...Chapman, 38 Kan. 307; Leavenworth R. R. v. Paul, 28 Kan. 821; Colville v. St. Paul R. R. Co ., 19 Minn. 285; Springfield R. R. v. Calkins , 90 Mo. 543; Vandine v. Burpee, 13 Met. 291; Swan v. Middlesex , 101 Mass. 177; Frankfort & K. R. R. Co. v. Windsor , 51 Ind. 238.) Upon the princip......
  • Request a trial to view additional results