Ashley, Drew & Northern Railway Co. v. Gulledge

• Decision Date: 15 November 1915
• Docket Number: 234
• Citation: 180 S.W. 222,121 Ark. 143
• Parties: ASHLEY, DREW & NORTHERN RAILWAY COMPANY v. GULLEDGE
• Court: Arkansas Supreme Court

180 S.W. 222

121 Ark. 143

ASHLEY, DREW & NORTHERN RAILWAY COMPANY v. GULLEDGE

No. 234

Supreme Court of Arkansas

November 15, 1915

Appeal from Drew Circuit Court; Turner Butler, Judge; affirmed.

Judgment affirmed.

Henry & Harris, for appellant.

1. The theory on which this case was tried as embodied in the instructions is in direct conflict with 73 Ark. 1. No private action lies on account of an act obstructing a public and common right, for damages of the same kind as those sustained by the general public, but an action will lie for peculiar or special damages of a kind different from that suffered by the general public. 45 Ark. 433; 92 P. 953; 22 Id. 814.

2. No cause of action was stated in the complaint. 73 Ark. 1.

3. Plaintiff failed to make out a case under the law. 35 Ark 622; 39 Id. 167; 92 Id. 468; 93 Id. 52. Evidence of mental anguish and annoyance caused by fear was not admissible. Damages from danger to person or family are too remote and uncertain. 206 Ill. 182 69 N.E. 66; 210 Ill. 270; 76 Ky. 667; 80 N.E. 413; 114 S.W 743; 86 N.E. 834; 147 S.W. 925.

Wilson & Moses, for appellee.

1. Plaintiff did not have to allege or prove improper construction of the road or tracks. Damages can result from occupancy of a street by a railroad even though skillfully built. 51 Ark. 499; 45 Id. 430; 77 Id. 392; 71 Miss. 247. The demurrer was properly overruled. The assessed value of property is not admissible as evidence of value. 42 Ark. 527; 44 Id. 259.

2. The instructions are declarations of the law as approved by this court. 39 Ark. 167; 41 Id. 436; 45 Id. 430; 51 Id. 495; 77 Id. 392; 79 Id. 126; 103 Id. 330; 15 Cyc. 703. The inconvenience and disadvantages from the sounding of whistles, ringing of bells, exposure to fire, increased danger to family and stock and any deterioration of value, etc., are all proper elements of damage. Also noise, smoke, cinders, gases, etc. 39 Ark. 169; 45 Id. 441; 51 Id. 449; Lewis on Em. Dom. 736; 79 Ark. 126; 136 U.S. 121; 103 Ark. 326.

3. Special injury was proven. 45 Ark. 429, 430; 77 Id. 396; 103 Id. 330.

4. Two distinct measures of damages were not submitted to the jury. 41 Ark. 435. The true measure and the various elements of damage were properly submitted to the jury. 41 Ark. 435; 35 Id. 622; 92 Id. 468; 93 Id. 52; 41 Id. 435; 45 Id. 430; 51 Id. 493; 77 Id. 390; 103 Id. 328.

OPINION

MCCULLOCH, C. J.

The plaintiff, Mrs. Kitty Gulledge, is the owner of real estate in the town of Monticello, abutting on the street along which the defendant has constructed and operates its railroad, and this is an action instituted against defendant to recover damages alleged to have been caused by the construction and operation of the railroad. The property of the plaintiff is situated on the northeast corner of Gabbert Street and Wood Avenue and fronts 280 feet on Gabbert Street and 128 feet on Wood Avenue. She has an eight-room residence on the lot, and also a five-room dwelling house which she rents out to tenants, and a garage situated between the two houses. All these houses front on Gabbert Street, along which the railroad is constructed the entire length. Defendant also has erected a switch stand near the corner of plaintiff's property. It is alleged that by reason of the appropriation of said street by defendant for its roadbed, switches and switch stands, and the operation of the railroad along the street, plaintiff's property has been diminished in value to the extent of the sum of $ 2,000, for which sum recovery is sought.

The evidence adduced by the plaintiff tends to show that the occupancy of the street by the defendant, in constructing and operating its railroad, has obstructed the approaches to her property and rendered it less accessible, and thereby caused depreciation in value to a considerable extent. Some of the witnesses testified that the property was depreciated at least one-half. The jury returned a verdict in plaintiff's favor and assessed her damages at the sum of $ 500, and the evidence was sufficient to justify a finding that the property was damaged in a greater sum than that allowed by the verdict.

The evidence showed that the track was built along Gabbert Street the full length of plaintiff's property, and that a switch stand came up within a distance of about three or four feet of her property. The evidence showed that the only means of access to plaintiff's property was along Gabbert Street, and that the occupancy of the street by the railroad seriously obstructed the access to the property. Plaintiff testified that it was almost impossible for any vehicle to get to her property on account of the ties and rails, and that it is necessary to get assistance in order to put a car into the garage. She also testified that the steam from the engines reached to the front porch, and that there were great inconveniences and discomforts on account of the smell of smoke and steam, and the noises from passing trains--that the trains would pass at night so close that the noise thereof prevented rest and sleep. Her testimony also was to the effect that it was difficult to find tenants who were willing to live in the house which she had for rent.

It is insisted by counsel for the defendant that the testimony is not sufficient to make out a case which rendered the railway company liable. But we think that according to the principles of law very well settled by decisions of this court, the evidence is sufficient to warrant a recovery of damages on account of the depreciation in the value of plaintiff's property. The court submitted the case to the jury on an instruction copied from the language of this court in the case of Hot Springs R. R. Co. v. Williamson, 45 Ark. 429, as follows: "The owner of premises abutting upon a street in a city or town may recover from a railroad company the damages resulting to his premises by the construction of its roadbed or other structures, on its right-of-way along the street, in such manner as to obstruct access to the premises, though he have no interest in the fee of the street, and no part of his premises be taken, and the road or other structure be skillfully and properly built."

Counsel seem to rely particularly upon the case of L. R. & H. S. West Rd. Co. v. Newman, 73 Ark. 1, 83 S.W. 653, but the language of that case is, we think, against their contention. In that case we decided merely that a landowner whose property does not abut on the railway track, and the property is not rendered inaccessible by reason of such track, can not recover damages by reason of the railroad built along the highway leading from such property. Judge Riddick, in stating the law applicable to that case, said, page 3: "The rule of law governing cases of this kind is that no private action on account of an act obstructing a public and common right will lie for damages of the same kind as those sustained by the general public, even though the inconvenience and injury to the plaintiff be greater in degree than to other members of the public; but an action will lie for peculiar or special damage of a kind different from that suffered by the general public, even though such damage be small, or though it be not confined to plaintiff, but he suffered by many others."

Further on in the opinion it was said: "Now, in this case, none of plaintiff's property abutted on that part of the street upon which the trucks were constructed. The railroad did not block the streets upon which it was constructed or prevent travel upon them. The access to plaintiff's property was...