Chicago, I. & E. Ry. Co. v. Mason

• Decision Date: 09 January 1901
• Citation: 26 Ind.App. 395,59 N.E. 185
• Court: Indiana Appellate Court
• Parties: CHICAGO, I. & E. RY. CO. v. MASON.

26 Ind.App. 395

59 N.E. 185

CHICAGO, I. & E. RY. CO.

v.MASON.¹

Appellate Court of Indiana.

Jan. 9, 1901.

Appeal from superior court, Howard county.

Action by the Chicago, Indiana & Eastern Railway Company against Florence Mason. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Steele & Kersey and Kirkpatrick, Morrison & McReynolds, for appellant. Blacklidge, Shirley & Wolf, for appellee.

HENLEY, C. J.

This action was commenced by appellant by filing in the office of the clerk of the Grant superior court its instrument of appropriation for the purpose of acquiring the right of way for the construction of a railroad across the real estate described in said instrument. The judge of said court appointed appraisers, who made an award giving appellee $75. To this award appellee filed exceptions. The cause, upon motion of appellant, was venued to the Howard superior court, where it was submitted to a jury for trial. A verdict in the sum of $350 was returned in favor of appellee, and over appellant's motion for a new trial judgment was rendered against appellant for said amount.

The only question presented by the record arises under the motion for a new trial. The question is presented in two ways-First, in the admission of certain evidence; and, second, in refusing to give to the jury instruction numbered 13, tendered by appellant, which, in effect, was to inform the jury that the evidence objected to must not be considered in assessing appellee's damages. The evidence admitted over appellant's objection was the answer to the second of the following questions: “Q. State whether or not, if you know, the running of trains through a field in cultivation in any way interferes in the cultivation of the land than you have already mentioned. Ans. Yes, sir. Q. How? Ans. By frightening teams.” Instruction numbered 13, which the court refused to give to the jury, was as follows: “In an action of this kind, it is not proper for the jury, in assessing damages, to take into consideration remote and fanciful injuries, which rest wholly in conjecture, and do not admit of an estimate in damages. As heretofore stated, the injuries for which a landowner in a case of any kind is entitled to recover are such as naturally and reasonably result from the construction and operation of the road, and where such injuries are not occasioned through the negligence, unskillful, or wrongful conduct of the railroad company. So, in this case, the court instructs you that it would not be proper for you, in assessing defendant's damages, in case you find for her, to take into consideration the liability of horses used on her farm to take fright from passing trains, as the same would be remote and fanciful, and does not constitute a proper element of damages in this action.” The measure of damages in such a case as this is the difference in the value of the real estate at the time of the appropriation and the value of the residue after the strip is taken under the appropriation proceedings. The correctness of this rule is admitted by both parties to this action. The sole...