Chicago & G.W.R. Co. v. Wedel

• Decision Date: 23 November 1892
• Citation: 32 N.E. 547,144 Ill. 9
• Court: Illinois Supreme Court
• Parties: CHICAGO & G. W. R. CO. v. WEDEL.

144 Ill. 9

32 N.E. 547

CHICAGO & G. W. R. CO.

v.WEDEL.¹

Supreme Court of Illinois.

Nov. 23, 1892.

Appeal from appellate court, first district.

Action on the case by Carl Wedel against the Chicago & Great Western Railroad Company to recover damages caused by the construction and maintenance of defendant's road in front of plaintiff's premises. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

H. S. Boutell and K. K. Knapp, for appellant.

Partridge & Partridge, for appellee.

CRAIG, J.

This was an action of trespass on the case brought by Carl Wedel against the Chicago & Great Western Railroad Company to recover damages caused to the plaintiff's property by the construction and operation of defendant's railroad on Rebecca street, in Chicago, in front of the plaintiff's premises. The plaintiff owned a lot, upon which he resided, 24 feet wide, fronting on Rebecca street. The street runs east and west, and the house is on the north side of the street, fronting south. In the construction of the road the defendant threw up an embankment, crossing Rebecca street diagonally from the southeast to the northwest, in front of plaintiff's premises. The embankment was shown to be about four feet higher than the natural surface of the ground, and most of the street in front of the premises was occupied by the roadbed and tracks of the defendant's road. It is claimed in the argument that, under the declaration in this case, no recovery can be had for a depreciation in the market value of the plaintiff's property caused by a legitimate construction and operation of the road, as no general damages or general depreciation of the market value of the property was alleged. Whether the declaration was technically sufficient to allow proof of a permanent injury to the premises, and a recovery for a depreciation of the market value of the property, we shall not stop to consider. If the averments of the declaration were insufficient in this regard, objection should have been made to the introduction of the evidence on the trial, where the difficulty could have been avoided by an amendment to the declaration. But no objection was interposed; but, on the other hand, the case was tried by both parties on the theory that, if plaintiff was entitled to recover at all, he was entitled to a recovery for the general depreciation of the market value of the property caused by the legitimate construction and operation of the road; under such circumstances the objection now interposed comes too late. After the plaintiff had closed his evidence, the defendant entered a motion to dismiss, on the ground that the evidence introduced was insufficient to authorize a recovery. This motion was overruled, and the defendant then introduced evidence on the merits, and at his request the jury were instructed as to the law involved in considering the case on its merits. If the court erred in overruling the defendant's motion to dismiss, the error was waived by introducing evidence on the merits and the instructions to the jury, as held in Railway Co. v. Velie, (Ill. Sup.) 26 N. E. Rep. 1086.

It is next claimed that improper evidence was admitted on behalf of the plaintiff. A witness for the plaintiff, who had seen the premises, and the location of the railroad in front of the premises, and who had not been present when any trains had passed, was asked the following question: ‘From the proximity of the premises to the railroad track, can you tell whether the smoke and cinders and gases from passing locomotives would enter these premises,-enter the house? (Objected to; objection overruled; exception by counsel...