Chesapeake & O.R. Co. v. Smith

• Decision Date: 13 May 1899
• Parties: CHESAPEAKE & O. R. CO. v. SMITH. [1]
• Court: Kentucky Court of Appeals

51 S.W. 12

CHESAPEAKE & O. R. CO. v. SMITH. ^[1]

Court of Appeals of Kentucky.

May 13, 1899

Appeal from circuit court, Boyd county.

"Not to be officially reported."

Action by Diana Smith against the Chesapeake & Ohio Railroad Company to recover damages for injuries to plaintiff's property by the construction and operation of defendant's road. Judgment for plaintiff, and defendant appeals. Affirmed.

Wadsworth & Cochran, for appellant.

Dinkle & Montague, for appellee.

GUFFY J.

It is substantially alleged in the petition in this case that the appellee was the owner of three lots, fronting on Main street, in Hampton City, and that her property had been damaged to the extent of $1,995 by the building and operation of a railroad track by appellant, in front of and so near her property as to materially deprive her of reasonable ingress and egress to and from her property, and that the cinders and smoke thrown out by cars running on said track, and the jarring of her property on account of the movement of the cars aforesaid, caused material damage to the property aforesaid. The answer is a traverse of all the averments of the petition as to any damage from any of the acts mentioned in the petition. Appellant also pleaded the statute of limitation. After the issues were fully made up, a jury trial resulted in a verdict and judgment in favor of the appellee for $700; and, appellant's motion for a new trial having been overruled, it prosecutes this appeal.

The substance of the grounds relied on for a new trial are First. The court erred in setting aside the swearing of the jury at a former term of this court, and in permitting plaintiff to file an amended petition, and granting plaintiff a continuance of the action. The second and third grounds complain of the admission and rejection of testimony. Fourth. Error of the court in refusing to give a peremptory instruction to find for defendant. Fifth. Error of the court in giving instructions 1, 2, 3, and 4. Sixth. Error of the court in refusing to give instructions A, B, C, D, and E. The seventh, eighth, and ninth grounds are, in substance, that the verdict is not sustained by the evidence and was the result of passion and prejudice.

It seems clear to us that appellee introduced proof conducing to show a right to recover, and, taking into consideration all the testimony, together with the further fact that the jury had a view of the premises, we are of the opinion that the verdict is sustained by the evidence; at least, the jury was authorized by the testimony to find the damages to be $700, and, this being true, we have no power to disturb the verdict.

The trial court must necessarily have a reasonable discretion as to setting aside the swearing of the jury, and continuing the cause, as well as permitting amendments; and we are not prepared to say that the court abused its discretion in this case.

As to the instructions offered by appellant, we are of the opinion that they were properly refused.

The instructions given by the court read as follows: No, 1 "If the jury believes, from the evidence, that the houses and lots of the plaintiff, Diana Smith, were appurtenant to Main street, in Catlettsburg, and that the defendant, the Chesapeake & Ohio Railroad Company, operated the railroad track complained of so near her said property as that, by the operation of its trains upon said track, it so appropriated and obstructed said street, adjacent to said property, as to unreasonably interfere with the use of...