Black v. Minneapolis & St. L.R. Co.

• Decision Date: 23 October 1903
• Citation: 96 N.W. 984,122 Iowa 32
• Parties: JAMES M. BLACK v. THE MINNEAPOLIS & ST. LOUIS RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

96 N.W. 984

122 Iowa 32

JAMES M. BLACK v. THE MINNEAPOLIS & ST. LOUIS RAILROAD COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 23, 1903

Appeal from Webster District Court.--HON. J. H. RICHARD, Judge.

ACTION to recover on four distinct causes of action, viz.: Damage to plaintiff's meadow caused by a fire set out by defendant's locomotive; destruction of certain hay by a fire set out at another time by defendant's locomotive the killing of a steer by defendant's locomotive on its track at a place where defendant had a right to fence, the steer having come upon the right of way at such place by reason of a defective and insufficient cattle guard; and the similar killing of certain pigs which came upon defendant's right of way by reason of insufficiency of defendant's fence. Verdict and judgment for plaintiff. Defendant appeals.

Affirmed.

R. M Wright for appellant.

Kenyon & O' Connor for appellee.

OPINION

McCLAIN, J.

As to the injury to the meadow, the sole question is one of measure of damages. A fire set out by defendant's engine in September burned over about eight acres of wheat stubble, among which grass was growing as the result of the sowing of grass seed with the wheat. But for the fire this grass would, it appears, have furnished pasture during the fall, a hay crop during the next summer, and further pasture after the cutting of the hay during the following fall; and witnesses testified that, although the land was reseeded in the spring following the fire there was no hay crop for that summer, nor pasturage during the following fall. The court instructed the jury that they might allow, as damages for the injury to the meadow, the actual cost of reseeding, and the fair and reasonable rental value for the time necessary to restore the meadow, during which the land was unproductive as a meadow as the result of the fire, less the fair and reasonable value of the use, if any, which plaintiff could have made of the land without interfering with its restoration as a meadow; and the jury by a special finding fixed the damage at $ 150. It appears from the evidence that the cost of reseeding was $ 10, the loss of pasturage for the two seasons was $ 20, and that, on the basis of what other portions of land in a similar situation and under similar conditions produced in hay during the season following the fire, the rental value of the eight acres for the purpose of raising hay would have been $ 120, although it appeared by other witnesses that the rental value of the land for ordinary purposes was not to exceed $ 3 per acre. The contention of counsel for appellant is that the court erred in allowing the introduction of evidence with reference to what the land would have produced in hay during the season if it had not been burned over, based on what other portions of the land constituting the meadow did actually produce, and in so instructing the jury as to allow them to take into account the amount of injury suffered, estimated on this basis. It is urged that the loss must be measured by the condition of the meadow at the time of the fire, and that it could not then be determined what the value of the prospective hay crop was; and therefore the rental value in general, and not the rental value as determined by what the balance of the meadow should actually produce, would be the measure of the loss.

We think, however, that counsel takes a fundamentally erroneous view as to the measure of damages in such cases. While it is true that the mere prospective use of land for a specific purpose, and the profits which would actually have resulted from such use, cannot be taken into account (Chicago v. Huenerbein, 85 Ill. 594 , yet, where the land has been appropriated to a particular use, as by converting it into an orchard or a meadow, or planting it to a crop which is already growing at the time of the injury, the loss must be determined with reference to such existing condition. Rowe v. Chicago & N.W. R. Co., 102 Iowa 286, 71 N.W. 409; Lommeland v. St. Paul, M. & M. R. Co., 35 Minn. 412 (29 N.W. 119); Bradley v. Iowa Cent. R. Co., 111 Iowa 562, 82 N.W. 996; Graessle v. Carpenter, 70 Iowa 166, 30 N.W. 392; Krejci v. Chicago & N.W. R. Co., 117 Iowa 344, 90 N.W. 708. "A meadow is in the nature of a permanent improvement, and is not like annual crops. Its value is largely based upon the fact that it possesses this character, and is not to be planted each year." Vermilya v. Chicago, M. & St. P. R. Co., 66 Iowa 606, 616, 24 N.W. 234.

As to the competency of the evidence with relation to what was actually produced during the season in question on other portions of the meadow of like character and under similar conditions, appellant's objections are not well taken. It must be borne in mind that this is an action for tort, and that the damage recoverable is not what the defendant might have anticipated as the consequence of the injury, but that which follows as the natural and proximate result of the injury, and it was competent to show by the best evidence obtainable what the meadow would probably have produced had the injury not occurred. It was, therefore, competent to show what the product of the other portions of the meadow not injured actually was. Wolcott v. Mount, 36 N.J.L. 262 (13 Am. Rep. 438); Chicago & R. I. R. Co. v. Ward, 16 Ill. 522; Passinger v. Thorburn, 34 N.Y. 634 (90 Am. Dec. 753); Flick v. Wetherbee, 20 Wis. 392; White v. Miller, 71 N.Y. 118 (27 Am. Rep. 13); Jones v. George, 61 Tex. 345 (48 Am. Rep. 280); Railway Co. v. Yarborough, 56 Ark. 612 (20 S.W. 515); St. Louis, I. M. & S. R. Co. v. Lyman, 57 Ark. 512 (22 S.W. 170); Randall v. Raper, E. B. & E. 84, 96 Eng. Com. L. 82. Some of these cases, it is true, relate to damages for loss of crop due to defective seed sold to the person planting the crop, and therefore involved breach of warranty rather than tort. But to authorize recovery in an action for breach of contract, the injury must be the natural and proximate result of the breach, and to this extent the measure of damage is the same as in an action for tort. Of course, the rule for measuring damages in actions for breach of contract may exclude damages which would be recoverable in case of tort, because not within the reasonable contemplation of the parties, but where the proper measure is the natural and proximate result of the wrong, and does not involve the question as to what damage was within the contemplation of the parties, we see no reason why it should not be the same in each class of cases. The rule excluding profits which are speculative and uncertain has reference rather to the matter of proof than to the measure of damage, and, where there is competent evidence as to the loss of profits, such loss may be taken into account. Hichhorn v. Bradley, 117 Iowa 130, 90 N.W. 592.

What the plaintiff actually lost in this case was the pasturage and the hay crop, and, as there was competent evidence as to what the burned portion of the meadow would actually have produced, the rental value of the land as meadow for the season during which plaintiff was deprived of its use for the purpose of raising a crop of hay thereon, might be determined by the jury and taken into account in fixing the damage. In this connection it is proper to notice a complaint that the court authorized the jury to allow interest at six per cent. on the damage to the meadow as found above. It is true that the damage was unliquidated, and plaintiff is not entitled as a matter of law to interest. But it is well settled that, in estimating even unliquidated damages, the jury may take into account interest on the sum found necessary to compensate the plaintiff for the injury suffered at the time of the loss, on the theory that such interest is a part of his damage. Richmond v. Dubuque & S. C. R. Co., 33 Iowa 422, 502; Frazer v. Bigelow Carpet Co., 141 Mass. 126 (4 N.E. 620); Richards v. Citizens' Nat. Gas Co., 130 Pa. 37 (18 A. 600); Lincoln v. Claflin, 74 U.S. 132, 7 Wall. 132, 139 (19 L.Ed. 106). As the verdict of the jury was with reference to the money loss sustained by the plaintiff at the time of the fire, they were properly told that they might, as an element of damage, include interest on the amount of such loss.

II. As a distinct cause of action against the defendant, plaintiff alleges the destruction of certain hay and a hayrack on plaintiff's land, which were destroyed by fire communicated thereto by sparks from a locomotive operated on defendant's road. With reference to this item, the only controversy is as to the evidence relied on as showing that sparks from the locomotive set the fire which resulted in the destruction of the hay and rack. There being some evidence that the...