Belch v. The Missouri Pacific Ry. Co.
| Decision Date | 25 May 1885 |
| Citation | 18 Mo.App. 80 |
| Parties | ELIZA C. BELCH, Executrix and Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Cole Circuit Court, HON. E. L. EDWARDS, J.
Reversed and remanded.
Statement of case by the court.
This case was originally instituted by J. Ed. Belch against defendant. The petition, omitting the formal parts, is as follows: Plaintiff states that at the time hereinafter stated he was and still is the owner and in possession of a certain tract or parcel of land situated in Osage county, state aforesaid, known as New Madrid Survey No. 2639; that on or about the 15th day of August, 1881, the defendant was running its engine and cars through said lands and by its agents servants, and employes then and there so negligently and carelessly ran and managed and operated its said engine, that fire and sparks were emitted from its said engine and communicated the fire to the plaintiff's meadow on said premises, being adjacent to defendant's railroad track that said fire, by reason of such carelessness and negligence of defendant's agents and employes, and by reason of the negligence of defendant's agents and employes in cutting down grass, weeds, and bushes, and permitting the same to dry and accumulate along the sides of the said railroad track and adjoining said premises of plaintiff, being so communicated, burned over eight acres of meadow well set in timothy, thereby destroying the same, and to the great damage of the plaintiff, to-wit, in the sum of $160.00. Whereupon the plaintiff prays judgment against the defendant for the sum of $160, his damages, together with his costs and interest. The answer was a general denial, and averred a full and complete settlement with the plaintiff for all the damages sustained by him and herein sued for, a payment of said amount to him, and the execution and delivery by him of a receipt in full.
The replication denied that the matters sued for were settled and alleged that plaintiff had another claim and demand against the defendant for fencing and rails burned, and that this was the matter settled.
Upon the trial, against defendant's objections, the plaintiff was permitted to ask his witness, Daniel Capps, the following question:
" What was the damage done by that fire, in your opinion, to Mr. Belch's meadow?"
To which question the witness answered: " I should think at least three hundred dollars."
For the plaintiff, William Boone testified that he cut the hay on this meadow last year.
Question.--What sort of a crop did Mr. Belch get from this meadow last year?
Objected to as incompetent and irrelevant, which objections being overruled, the defendant excepted.
Answer.--A very fair crop. Part of it went a ton and a half and a part of it two tons to the acre.
Q.--What would you consider the damage done to Mr. Belch by that fire?
Objected to because incompetent, irrelevant and not a matter of opinion, which objections being overruled, the defendant duly excepted.
A.--The damage will have to be on this year's crop. It could not be on last year's crop as that was not burned. It would be loss of the coming crop and the cost of putting it in.
Q.--What is your estimate of that damage?
Objected to for the same reasons as last above stated, which objections being overruled, the defendant duly excepted.
A.--If it were mine, I would consider it two hundred dollars.
Judgment was rendered in favor of plaintiff. From that judgment the defendant appealed to the supreme court. After the appeal the plaintiff died, and in the supreme court the cause was revived in the name of the plaintiff's executrix. The case is in this court by transfer from the supreme court, in accordance with the provisions of the constitutional amendment creating this court.
SMITH & KRAUTHOFF, for the appellant.
I. The court erred in permitting plaintiff's witnesses to state what, in their opinion, was the amount of damages sustained by him. A witness cannot be permitted to express an opinion which depends upon uncertain facts which may or may not transpire, and which cannot be foreseen as the result of any experience, nor stated as a deduction of science or law. Here the estimate of one witness included what he supposed a good crop of hay, well cut and stacked, would be worth, if sold at a good price, and this too when he was testifying before the time the crop could, in the nature of things, have matured, or, of course, cut, stacked or sold. And the other witnesses included three such crops. Dana v. Fiedler, 12 N.Y. 40; Norman v. Wills, 17 Wend. 136. Nor can a witness give his opinion of the amount of damages a party sustains from a given act or omission because when he does so he includes the law as well as the fact. It is the province of the jury to assess the damages according to the rule of law, which it is the province of the court to lay down for their guidance; and witnesses are allowed only to furnish the data from which the amount is arrived at. Giles v. O'Toole, 4 Barb. 261; Van Deusen v. Young, 29 N.Y. 9; Green v. Plank, 48 N.Y. 669; Rodgers v. Fletcher, 13 Abb. Pr. 299; Thompson v. Dickhart, 66 Barb. 604; Gilbert v. Cherry, 57 Georgia 128. The witnesses were not asked the value of the meadow as it stood. Upon this their opinion might have been admissible, but the inquiry was as to the damages done to plaintiff.
II. This case was not based upon the theory of a negligent escape of fire. No right of action is based upon the fact that fire dropped from the engine of defendant, but the negligence alleged is the permitting of dry grass and weeds to accumulate on the right of way. It must have been shown that the grass and weeds were not only permitted but negligently permitted to accumulate, and as there was no proof of this, an instruction based upon this assumption given for plaintiff was erroneous. Railroad Co. v. Mills, 42 Ills. 407; R. R. v. Shanepelt, 47 Ills. 497. It has been held in this state, in such a case as this, that it is competent for defendant to show that plaintiff had suffered a similar accumulation and without it he would have suffered no injury. Fitch v. R. R., 45 Mo. 322; Smith v. R. R., 37 Mo. 287; Coates v. R. R., 61 Mo. 38.
III....
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