Alesko v. Union Pacific Railroad Co.

• Decision Date: 22 January 1941
• Docket Number: 6817
• Citation: 62 Idaho 235,109 P.2d 874
• Parties: MIKE ALESKO, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

109 P.2d 874

62 Idaho 235

MIKE ALESKO, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Respondent

No. 6817

Supreme Court of Idaho

January 22, 1941

Rehearing denied February 10, 1941.

DAMAGES MEASURE OF - INJURY TO REALTY - TEMPORARY INJURY - QUESTIONS FOR JURY-INSTRUCTIONS-APPEAL-VIEW OF PREMISES BY JURY.

1. If cause of injury to realty is abatable or preventable and injury is capable of rectification by reasonable restoration the cost of which does not exceed the amount of damage to the property, the injury will be considered "temporary" and not "permanent" as affecting measure of damages.

2. Even though injury to realty be only temporary, value of the premises in their original condition or diminution in their market value is the limit of recovery if smaller than the cost of restoration.

3. In action against railroad for damages to land from flooding allegedly caused by negligent construction and maintenance of pile-supported trestle which deflected flood waters, where there was evidence that railroad attempted unsuccessfully to prevent injury to the land, and that land was restored to original condition without cost to landowner, it was for jury to determine whether injury was temporary or permanent, and conclude accordingly on amount of damages.

4. In action against railroad for damages to land from flooding allegedly caused by negligent construction and maintenance of pile-supported trestle, instruction was erroneous in stating that railroad had right to drive pile bents into stream if it used reasonable care, in requiring finding, as basis for verdict for plaintiff, that railroad "failed to do, or did," something which reasonably prudent person "would or would not have done," and in authorizing verdict for railroad if reasonably prudent railroad operator would have considered bridge sufficient to take care of debris which might reasonably be expected to come down without requiring finding that railroad did all that reasonably prudent person would have done.

5. In action against railroad for damages to land from flooding allegedly caused by negligence in constructing and maintaining pile-supported trestle, instruction that remedial work done by Works Progress Administration in partially cleaning plaintiff's land of effects of flood should be deducted from damages, on theory that Administration was to some extent agency of the railroad because partly supported by its payment of taxes, was erroneous.

6. In action against railroad for damages from flooding allegedly caused by railroad's negligence, general verdict for railroad did not render harmless an erroneous instruction on measure of damages, since jury might have found negligence but nevertheless concluded that damage was not sufficiently proven.

7. New trial for alleged misconduct of defendant's employee in connection with jury's view of premises, and prejudice of juror, was properly denied where it was apparent that plaintiff seeking new trial was himself the flagrant offender. (I. C. A., sec. 7-209.)

8. View of allegedly damaged realty should be had only in the company and presence of attorneys, judge and bailiff in charge of jury, and any interested parties, particularly landowner or witnesses, should not be allowed in the vicinity at the time of the view, or allowed to talk with jury. (I. C. A., sec. 7-209.)

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. Albert H. Featherstone, Judge.

Appellant sued for damages by flooding. From a verdict and judgment thereon for respondent, appellant appeals. Reversed and remanded for a new trial.

Reversed and remanded. Costs to appellant.

Walter H. Hanson and Eugene McCann, for Appellant.

The party committing the tort cannot set up in mitigation of damages that somebody else has either in whole or in part indemnified the party injured, but must pay the amount of damage as it can be fixed by the evidence at the time. ( S. H. Kress Co. v. Bullock Shoe Co., 56 F.2d 713-715; 15 Am. Jur., Damages, section 198; Northwestern Nash Automobile Co. v. Bartlett, 100 Vt. 246, 136 A. 697-701.)

In estimating the damage in a case of this kind the entire property as a unit must be considered and the cost of restoring it to the condition in which it was before the injury complained of is the amount which the appellant is entitled to recover, that being the measure of damages, it being the purpose of the law to afford to the person damaged compensation for the loss sustained. (Clark-Lloyd Lumber Co. v. Puget Sound and C. Ry. Co., 92 Wash. 601, 159 P. 774, 96 Wash. 313, 165 P. 94; Tillson v. Consumers' Power Co., 269 Mich. 53, 256 N.W. 801-805; Ponca City Milling Co. v. Krow et al., 131 Okla. 98, 267 P. 629; Big Five Mining Co. v. Left Hand Ditch Co., 73 Colo. 545, 216 P. 719, 720, 721.)

James A. Wayne and Hamblen & Gilbert, for Respondent.

The correct measure of damages where land is permanently injured is the difference between the actual cash value at the time immediately preceding the injury and the actual cash value immediately after the injury. (17 C. J., p. 880, sec. 187; Young v. Extension Ditch Co., 13 Idaho 174, 89 P. 296; Boise Valley Construction Co. v. Kroeger, 17 Idaho 384, 105 P. 1070, 28 L. R. A., N. S., 968; Hanes v. Idaho Irrigation Co., Ltd., 21 Idaho 512, 122 P. 859; Inyo Chem. Co. v. City of Los Angeles, (Cal. App.) 34 P.2d 165.)

Evidence that a public authority without expense to the owner partly restored premises injured by a flood is admissible to show diminution of damages claimed to have been sustained by such flood through the negligence of the defendant. (15 Am. Jur., sec. 354; Drinkwater v. Dinsmore, 80 N.Y. 390, 36 Am. Rep. 624; Alabama Midland Ry. Co. v. Coskry, 92 Ala. 254, 9 So. 202.)

GIVENS, J. Budge, C. J., and Morgan, Holden and Ailshie, JJ., concur.

OPINION

GIVENS, J.

Appellant sued to recover damages for the flooding of his homesite (buildings and yard shown in pictures below) and washing the top soil therefrom charged to have been occasioned by the negligent construction and maintenance of respondent's pile-supported trestle, south and up stream from appellant's premises, impeding and deflecting flood waters in Big Creek, Shoshone county, April 1938.

Plaintiff's Exhibits 2, 6, and 3, graphically portray the situation before and during the flood:

[SEE PLAINTIFF'S EXHIBIT "2" IN ORIGINAL]

[SEE PLAINTIFF'S EXHIBIT "6" IN ORIGINAL]

[SEE PLAINTIFF'S EXHIBIT "3" IN ORIGINAL]

The railroad bridge was constructed as part of respondent's line up the South Fork of the Coeur d'Alene River in 1889, with 15 foot center pile bents. A flood in 1933-1934 washed through respondent's right of way at both ends of this bridge and flooded and eroded appellant's land, including some 40 acres south and east of the bridge then, not now, owned by him.

The deck of the trestle was then raised 14 inches and respondent straightened and deepened the channel of Big Creek for about 1,200 feet above and below the trestle, appellant donating the necessary right of way and contributing to the work by hauling the gasoline for a drag line shovel supplied by respondent. Other riparian owners further straightened and deepened the channel up stream to the south.

Respondent at the time of the instant flood attempted unsuccessfully in various ways to cope with the high water and prevent injury to appellant's land. After the water had subsided the W. P. A. removed, without cost to appellant debris from his land, restored the county road parallel to the railroad and his private roadway therefrom.

The jury returned a general verdict in favor of respondent and ensuing judgment of dismissal resulted in this appeal.

Appellant offered evidence showing the cost of replacing the top soil on his property, contending the proper rule to be: "If the land is temporarily but not permanently injured the owner is entitled to recover the amount necessary to repair the injury and put the land in the condition it was at the time immediately preceding the injury, with legal interest," as thus stated in Young v. Extension Ditch Co., 13 Idaho 174, 89 P. 296, and Boise Valley Construction Co. v. Kroeger, 17 Idaho 384, 402, 105 P. 1070, 28 L. R. A., N. S., 968; annotations in L. R. A. 1916E, 1011; 3 L.R.A. N.S. 973; 35 A. L. R. 1222; 38 A. L. R. 1388; 87 A. L. R. 1387; 15 Am. Jur. 517, sec. 109, p. 519, sec. 110.

Respondent contends to the contrary that the proper rule is that likewise announced in the same cases covering permanent injury thus: "If the land is permanently injured but not totally destroyed, the owner will be entitled to recover the difference between the actual cash value at a time immediately preceding the injury and the actual cash value of the land in the condition it was immediately after the injury, with legal interest."

The court gave the substance of the latter rule.

The rule deducible from the authorities is that if the cause of the injury is abatable or preventable and the injury capable of rectification by reasonable restoration, i. e., not exceeding the damage to the property, the injury will be considered temporary and not permanent. (St. Louis & S. F. Ry. Co. v. Ramsey, 37 Okla. 448, 132 P. 478; Slane v. Curtis, 41 Wyo. 402, 286 P. 372, 288 P. 12, 69 A. L. R. 906; Ponca City Milling Co. v. Krow, 131 Okla. 98, 267 P. 629; Green v. General Petroleum Corp., 205 Cal. 328, 270 P. 952, 60 A. L. R. 475; Inyo Chemical Co. v. City of Los Angeles, (Cal. App.) 34 P.2d 165, citing Young v. Extension Ditch Co., 13 Idaho 174, supra; 17 C. J. 880, sec. 187; Manley v. Brown, 90 W.Va. 564, 111 S.E. 505; Chicago, St. L. & N. O. Ry. Co. v. Hicks, 249 Ky. 578, 61 S.W.2d 37; 1 Am. Jur. 500, Actions, sec. 119; 15 Am. Jur. 518, Damages, sec. 109...